PROFESSOR MOHAMMED SANI YAHAYA v. USMAN UDI & ORS
(2019)LCN/13208(CA)
In The Court of Appeal of Nigeria
On Monday, the 6th day of May, 2019
CA/YL/67/2019
RATIO
JOINDER: THE PROVISION AS REGARDS JOINDER IN THE FEDERAL HIGH COURT OF NIGERIA CIVIL PROCEDURE
Joinder of parties as defendants is provided for under Order 9 Rules 5 of the Federal High Court Civil Procedure Rules 2009. It provides:
Any person may be joined as defendant against whom the right to any relief is alleged to exist, whether jointly severally or in the alternative. Judgment may be given against any one or more of the defendants as may be found to be liable, according to their respective liabilities without any amendment.
The above provision came up for interpretation before the Courts in a plethora of cases. In AJAYI VS JOLAYEMI (2001) 10 NWLR (PT. 722) 516 it was held by the Supreme Court that the only reason which makes a party a necessary party as to be joined in a suit is that he should be bound by the result which cannot be effectually settled without him.PER ABDULLAHI MAHMUD BAYERO, J.C.A.
JOINDER: THE IMPORTANCE OF JOINING A PARTY THAT NEEDS TO BE JOINED
It therefore follows that the issues raised in the Appellants application for joinder could not have been effectively and conclusively determined without Senator Joel Ikenya being a party to the application in view of the allegation against him. Senator Joel Ikenya was a necessary party to the Appellants application for joinder. See GREEN VS GREEN (Supra) and JOKOLO VS KEBBI STATE (2009) 11 NWLR (PT. 1152) 394.PER ABDULLAHI MAHMUD BAYERO, J.C.A.
JOINDER: FAILURE TO JOIN REQUIRED PARTY COULD RENDER THE ACTION INCOMPETENT
Failure to join Senator Joel Ikenya therefore made the application incompetent and the learned trial Judge was right when he refused the application on that ground. See OKONTA VS PHILIPS (2010) 18 NWLR (PT. 1225) 320 at 326 337 Paragraphs G B.PER ABDULLAHI MAHMUD BAYERO, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
PROFESSOR MOHAMMED SANI YAHAYA – Appellant(s)
AND
1. USMAN UDI
2. JOSHUA PAAKU
3. GEORGE GEOFREY
4. TANKO MUSLIM MUNKAILA
5. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
6. ABUBAKAR SANI DANLADI
7. ALL PROGRESSIVE CONGRESS (APC) – Respondent(s)
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the Federal High Court, Jalingo Division delivered by S. D. Pam J on 6th March, 2019 in Suit No. FHC/JAL/CS/1/2019. The Appellant and the 6th Respondent contested the primary election organized by the 7th Respondent for the purpose of selecting the 7th Respondents candidate for the 2019 General Election to the office of Governor, Taraba State. The primary election took place on 2nd October, 2018 and the 6th Respondent emerged victorious and his form CF001 was submitted to the 5th Respondent by the 7th Respondent on 25th October, 2018. The Appellant filed an action before the lower Court wherein they sought for an order disqualifying the 6th Respondent on the grounds that he had lied in his Form CF001.
The Appellant by an application dated the 15/02/2019 prayed for an order joining him as a defendant in the suit. The application for joinder was taken together with the substantive suit. On 6th March, 2019 the lower Court held that since the Appellant did not file his action within 14 days as prescribed by Section 285 (9) of
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the 1999 Constitution (as amended), he was not entitled to the prayer sought. Dissatisfied, the Appellant filed this Appeal by a Notice of Appeal filed on 7th March, 2019, the Appellant?s Brief was filed on 15th April, 2019.
In the Brief learned Counsel formulated five issues for determination:-
1. Whether the trial Court was right to hold that the application for joinder of the Appellant is misconceived because the Plaintiffs/Respondents have no relief against the Appellant and consequently did not consider any of the processes filed by the Appellant at the trial. (Ground One)
2. Whether the trial Court was right and has accorded the Appellant fair hearing when it determined the Appellant?s application to be joined in the suit without considering the Appellant?s reply on point of law in support of the application. (Ground Two)
3. Whether the trial Court was right that the application for joinder of the Appellant lies under the provisions of Section 87 of the Electoral Act 2010 (as amended) and therefore caught up by the provisions of Section 285(9) of the 1999 Constitution. (Ground three)
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4. Whether the trial Court was right to have found that Sen. Joel Ikenya is a necessary party to the application for joinder filed by the Appellant and proceed to refuse the grant of the application for failure to join the said Senator Joel Ikenya in the application for joinder. (Ground five)
5. Whether the trial Court was right to have relied on the decision of Supreme Court in Saleh V. Abah (2017) 12 NWLR (Pt 1578) SC 100 to disqualify the 6th Respondent without binding itself by the same decision which stipulates that the runner-up of the primary election ought to replace the disqualified candidate. (Ground Six).
On issue one Counsel submitted that the position of the law regarding the joinder of party before the trial Court is covered by Order 9 Rule 5 and 7 of the Federal High Court Rules and Section 36 of the 1999 Constitution as amended. He referred to the case of THE REGISTERED TRUSTEES OF NATIONAL ASSOCIATION OF COMMUNITY HEALTH PRACTITIONERS OF NIGERIA & ORS. V. MEDICAL AND HEALTH WORKERS UNION OF NIGERIA & ORS (2008) LPELR-3196 (SC).
That the law is trite that the key test for joining a party is whether he will be directly affected by the judgment of
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the Court in the suit by curtailing or interfering with the enjoyment of his legal right. This is because the only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action, and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party.
He cited the case of IGE VS. FARINDE (1994) NWLR (Pt. 354) 45. That the category of persons the law recognized in Section 31 (5) of the Electoral Act with interest in disqualification suit includes the Appellant. That the Appellant has shown in paragraphs 12, 13, and 14 of the Appellant?s application for joinder his right to succeed the 6th Appellant which was not denied by any of the parties as shown at page 96 of the Record of Proceedings.
He urged the Court to invoke the general powers of the Court pursuant to Section 16 of the Court of Appeal Act 2005 and look into the whole case of the Appellant at the trial Court and make findings of fact necessary there from.
That the case of the Appellant at trial is that the 6th Respondent whose actual
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Name is Sani Babu forged the certificates of one Abubakar Sani Danladi by altering the photograph on the WAEC certificate to carefully insert his own in order to lay claim of the said original certificate. The 6th Respondent has now presented the said forged certificate to the 5th Respondent. The forged certificate is already before the Court and the Original certificate was to be produced on subpoena but for the denial of the application to join the Appellant at trial. That all these facts are clearly established in the Appellants Counter Affidavit as seen in pages 212-376 of the record of proceedings. That upon the disqualification of the 6th Respondent, the Appellant has shown that he is entitled to succeed the 6th Respondent by virtue of the result of the 7th Respondent?s primary election
That the Applicant has placed enough evidence before the Court to secure the discretion of this Court in granting all the reliefs sought to be granted.
That facts admitted need no further prove. He placed reliance on Section 123 of the Evidence Act 2011 and submitted that the failure of the Respondents to specifically deny or counter paragraphs 9, 10, 11,
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12, 13 and 14 of the Appellant?s affidavit in support of motion to be joined at trial dated 4th February 2019 at page 94-96 of the records of proceedings shows they have admitted that the Appellant had sufficient interest to be joined in the suit FHC/JAL/CS/1/2019.
He urged the Court to resolve issue one in favour of the Appellant and against the Respondents.
On issue two, learned Counsel submitted that the trial Court erred in law to have determined the Appellants application for joinder without considering the Appellant?s reply on point of law.
He referred to the case of ZENITH PLASTICS INDUSTRIES LTD v. SAMOTECH LTD (2018) LPELER-44056 (SC).
On issue three, Counsel submitted that the application for joinder does not fall under Section 87 of the Electoral Act and it is not limited in any way by the provisions of Section 285 (9) of the Constitution.
That the 14 days limitation period in Section 285 of the Constitution applies to the Appellant?s counter claim and not their claim. That they have greatly misconceived the provisions of Section 285 of Constitution of the Federal Republic of Nigeria for the following reasons:
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1. The action contemplated or provided for in Section 87 (10) of the Electoral Act and Section 285 of the Constitution is not the same with the type of action contemplated in Section 31 of the Electoral Act.
2. The action under Section 31 (5) of the Electoral Act can be maintained by any person. That any person means any person. It does not exclude a Political Party (a legal person) or an aspirant (a natural person). The intention of the legislature in making that provision is to actually make room or confer locus on any person conceivable under the law without limit or restriction.
3. The Supreme Court has settled this issue of defining any person as used in Section 31 of the Electoral Act in the case of LAWRENCE v. PDP & ORS(2017) LPELR-42610(SC):
For all intents and purposes, the use of the words, “a person” presupposes any person. It is also open ended to all and at the same time inclusive of all and without restriction or exclusion. The fact that one is a member of a particular political party or not, is of no relevance but is all embracing.”
That their counter claim falls under Section
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31 of the Electoral Act as the definition of any person does not exclude the Applicant.
That the Counter Claim of the Applicant is based on disqualification and right to succession. Disqualification is the principal claim and right to succession in mandate is ancillary or peripheral to the disqualification claim.
That the limitation period specified in Section 285(9) of the Constitution is restricted to specie of pre-election matters specified in the same Section 285 (14). Therefore, it does not apply to other kinds of pre-election matter like challenging voter register, registration of political parties, disqualification suits based on Section 31 of Electoral Act among others. As a matter of law, INEC has been given the leverage of 14 days within which to furnish an intending plaintiff under Section 31 with the documents submitted by a candidate. See Section 31 (4) of the Electoral Act. Thus, if the limitation under Section 285 of the Constitution will apply to actions under Section 31 of the Electoral Act, it means such actions will become statute barred even before INEC issues the documents to an intending Plaintiff. He urged the Court to
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resolve the third issue in favour of the Appellant.
On issue four Counsel submitted that Senator Joel Ikenya who is not a party to the suit at trial is not a necessary party to the Appellants application for joinder. That it is absurd for a party seeking to be joined in a suit to unilaterally join another person who is not a party to the pending suit as a party to his application. There is no known law in support of this and we urged the Court to resolve this issue in favour of the Appellant.
On issue five Counsel submitted that the trial Court is bound to follow the decision of the Supreme Court in Saleh v. Abah (2017) 12 NWLR (Pt 1578) SC100 and it cannot pick and choose which part of the decision it should follow.
That PROFESSOR MOHAMMED SANI YAHAYA, the Appellant ought to stand as the nominated candidate of the 7th Respondent in view of the fact that the 6th Respondent and Sen. Joel Ikenya are not qualified to contest or be nominated by the 7th Respondent. He referred to the case of SALEH v. ABAH & ORS (2017) LPELR-41914(SC).
That in view of the disqualification of the 6th Respondent and Senator Joel Ikenya, it is the
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Appellant that will step into the shoes of the 6th Respondent as candidate of the 7th Respondent in the March 9, 2019 election. This is more so that only Political Parties are allowed to canvass for votes and the 7th Respondent was not precluded from presenting candidate in the election for any reason. Consequently, the 7th Respondent is mandated to present, sponsor and nominate the Appellant as its candidate in the said election. He urged the Court to resolve the 5th issue in favour of the Appellant, allow the Appeal, set aside the Judgment of the lower Court and grant all the reliefs sought. In his response, learned Counsel to the 6th and 7th Respondents submitted that they filed their Brief of Argument on 24th April, 2019 and formulated one issue for determination:-
Whether the learned trial judge was right when he refused the Appellant?s application for joinder. If the answer to the above is in negative, what then is the effect of the non joinder by the trial Court.
According to Counsel, the Appellant had filed an application dated 1/02/2019 wherein he sought for the following orders:
1. ?AN ORDER of this Honourable Court joining
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Professor Mohammed Sani Yahaya as a defendant in this suit.
2. AN ORDER deeming the counter affidavit, written address and notice of counter claim of the party seeking to joined as Defendant as properly filed and served the necessary fees having been paid.
3. SUCH FURTHER ORDER as this Honourable Court will deem fit to make in the circumstances.
The relevant paragraphs of the Appellant?s affidavit in support of the application for joinder are paragraphs 8 – 15.
8. I participated in the 2nd defendant?s screening and clearing of candidates for the said election and was successfully cleared to contest the election.
9. The 2nd defendant primary election for the office of Governor of Taraba State was conducted and the following result was declared.
a) Sani Abubakar Danladi – 60,629 votes
b) Senator Joel Ikenya – 11,773
c) Professor Mohammed Sani Yahaya -7,299
d) Garba Umar UTC – 5,504
e) Comrade Bobboi Bala Kalgama 5, 504
f) Chief David Sabo Kente – 5,549
g) Aliyu Omar MON – 4,638
h) Chief Ezekiel Afunkoyo – 2,811
i) Mohammed Tumba – 1,888
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j) Barr. Kabiru Umar Esq – 1,783
A copy of the result is attached as Exhibit D.
10. The 1st defendant and Senator Joel Ikenya are not qualified to fly the 2nd defendant?s flag at the General Elections as a result of the following facts:
a) That the 1st defendant failed, neglected and/or refused to present a legally valid and cognizable evidence that he is educated up to school certificate level or its equivalent. I will establish this fact in the substantive matter.
b) The 1st defendant has presented to the 2nd and 3rd defendants the WAEC result of another different person incidentally named Abubakar Sani Danladi claiming to be the 1st defendant?s result.
c) The 1st defendant has presented a forged Certificate to the 2nd and 3rd defendants.
d) Senator Joel Ikenya is not qualified to run the 2nd defendant?s flag as he has been nominated and is standing election as Taraba South Senatorial Candidate of APGA.
11. I am the candidate with the highest valid votes cast at the primary election of the 2nd defendant and duly nominated as such.
12. The 2nd defendant is entitled to present me to the 3rd defendant as its
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qualified Gubernatorial Candidate for Taraba State gubernatorial election.
13. I am fully qualified and without any legal impediment as the candidate of the 2nd defendant for the Taraba State Gubernatorial Election.
14. The disqualification of the 1st defendant and Senator Joel Ikenya does not preclude the 2nd and 3rd defendants from recognizing, accepting and according me to be the duly nominated candidate of the 2nd defendant at the forth coming Taraba State Gubernatorial Election slated for 2nd day of March, 2019.
15. That I have attached my proposed counter-affidavit, written address and notice of counter-claim to this suit as Exhibit E.
16. That I make this oath in good faith, conscientiously, believing to be true, correct and in accordance with the Oath Act 2004?.
The application for joinder filed by the Appellant before the lower Court was opposed by all the Respondents. That in a Ruling delivered on the 6th March, 2019, the learned trial Judge held as follows:
From the facts above, Senator Joel Ikenya is a necessary party to the application brought by the Applicant/Party seeking to be joined. The failure to
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join Senator Ikenya to the application in itself renders the application incompetent and on this ground the application ought to be struck out by the Court
A Court of law does not embark on a hypothetical determination of cases. The Applicant/Party seeking to be joined is inviting the Court to consider a motion to be joined as a party and determine that the Applicant/Party seeking to be joined is entitled to file a counter claim because Senator Joel Ikenya who came 2nd position in the primary election of the 2nd defendant has waived his right yet he is not made a party to the application.
The party seeking to be joined as 4th defendant contested with the 1st defendant as such his counter-claim comes under pre-election matters and by Section 285(9) and (14) he was supposed to have filed his application within 14 days from the date of the announcement of the primary election result. He slept over his right and cannot now want to benefit after waking up from his slumber. Where the constitution provides for the doing of a thing and it is not done within the stipulated period as prescribed in the constitution no Court of law can enlarge time to
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an Applicant who refused to take advantage of the period when the act occurred. The party seeking to be joined is therefore not entitled to the reliefs sought and his application is accordingly incompetent as the Court finds no merit in it. The application is hereby dismissed.?
From the Judgment reproduced above, the application for joinder filed by the Appellant was dismissed because:
1) The Appellant sought some reliefs against Senator Joel Ikenya but the Appellant did not make Senator Joel Ikenya a Respondent to his application for joinder.
2) The appellant brought up a counter-claim when Senator Joel Ikenya who was a necessary party to the counter-claim was not made a party.
3) The Appellant sought to ventilate his grievance against the primary election conducted by the 7th Respondent on 2nd October 2018 via the application for joinder when by Section 285(9) of the 4th Alteration No. 21 of 2017 to the 1999 Constitution, the Appellant had only 14 days to seek redress from the date of declaration of the results of the Primary Election.
Was the learned trial Judge right when he refused the application for joinder? That the
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learned trial Judge was right when he dismissed the Appellant?s application for joinder.
Joinder of parties as defendants is provided for under Order 9 Rules 5 of the Federal High Court Civil Procedure Rules 2009. It provides:
?Any person may be joined as defendant against whom the right to any relief is alleged to exist, whether jointly severally or in the alternative. Judgment may be given against any one or more of the defendants as may be found to be liable, according to their respective liabilities without any amendment?.
That the above provision has come up for interpretation before the courts in a plethora of cases.
According to Counsel in AJAYI VS JOLAYEMI (2001) 10 NWLR (PT. 722) 516 it was held by the Supreme Court that the only reason which makes a party a necessary party as to be joined in a suit is that he should be bound by the result which cannot be effectually settled without him.
What then was the question in the 1st ? 4th Respondents? claim before the lower Court? Can that question in the 1st -4th Respondents claim be determined without the Appellant being a party? It is submitted that
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the question before the lower Court was whether or not the 6th Respondent had lied as to his West African School Certificate (WAEC) submitted via his Form CF001 to the 5th Respondent by the 7th Respondent. Can that question be determined without the Appellant being a party to the proceedings? Put differently, did the 1st -4th Respondents make any claim against the Appellant as to have made his presence necessary in the proceedings?
According to counsel, there is no single claim against the Appellant in the action by the 1st-4th Respondents before the lower Court. An examination of the 1st-4th Respondents claim on pages 2 ? 4 of the record will show clearly that there is no mention at all of the name or interests of the Appellant. There is nothing in the case of the 1st-4th Respondents that cannot be settled without the Appellant being a party. In such circumstances, it would have been wrong on the part of the learned trial Judge to make the Appellant a party. He cited AJAYI V. JOLAYEMI Supra where the Court held at page 538 paragraph A.
?It is improper to join as co-defendants person against whom the plaintiff has no cause of action and
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against whom he has made no claim and whose interest is adverse to that of the defendants?.
According to Counsel, the Appellant?s ?counter claim? where he sought to replace the 6th Respondent was fatal to the application for joinder as it was adverse to the interests of the 6th and 7th Defendants. That a party will not be allowed to be joined in a proceeding as a defendant against whom there is no claim at all. That the interest of the Appellant is speculative, imaginary and not real. It is not based on any legal right. It is submitted that it is not the kind of ?interest? contemplated by Order 10 Rule 5 of the Rules of the Federal High Court as to entitle him to be joined. That the depositions in the affidavit of the Appellant at best makes him a desirable party (not conceded) not a necessary party. Counsel cited GREEN VS GREEN (1987) 3 NWLR (Pt. 61) 480 at 499 paragraph B where it was Held:-
?The consensus of judicial opinions in the cases I cited above would seem to be that though Solomon M.D. Green (no doubt a rival Chief to the plaintiff) is a desirable party to be joined in these proceedings,
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but he was not a necessary party. He was a desirable party because he too has an eye to the Jeky House chieftaincy but his presence as a party will not be necessary to enable the Court decide the main suit in this case which is whether or not the Plaintiff, Chief Abusi David Green, was (as he pleaded in his paragraphs 6 and 7 of his statement of claim) nominated and unanimously elected to the vacant stool of Jeky Green sub House. It is this nomination and election that will confer on the plaintiff firstly, the right to the declaration he claims and secondly a right to have his right to the stool of Jeky Green sub House disturbed and thirdly a right to have this ?accrued right? protected by an injunction. Solomon M.D. Green need not be a party to enable the Court decide all the above issues. I am therefore inclined to agree with Mr. Nwanodi that Solomon M.D. Green, though a desirable party, was not a necessary party in this case?.
That the learned trial judge was right when he refused to join him. This alone we submit is enough to dispose the presence appeal. He urged the Court to so hold.
?He urged the Court to hold on the strength
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of the foregoing that contrary to the arguments of Counsel to the Appellant contained on pages 4 ? 7 of his brief, the Appellant did not establish in any way that the issues submitted for adjudication before the lower Court could not be completely and effectively determined without him. He was not a necessary party. The lower Court was justified when it dismissed his application for joinder.
According to Counsel, the imagined or speculative interest of the Appellant upon which the application for joinder and the counter claim was filed is anchored on the results of the primary election. The case of the Appellant is that the emergence of the Senator Joel Ikenya as the Senatorial Candidate of APGA for Taraba South and the alleged disqualification of the 6th Respondent ought to entitle him automatically as the candidate of the 7th Respondent for the March 9th Governorship election to the office of Governor of Taraba State. That in plain language is the alleged interest of the Applicant/Appellant in seeking to join the suit before the lower Court. See paragraphs 9 ? 16 of the affidavit in support for joinder filed before the lower Court at pages 95 ? 96 of the Records (Vol. 1).
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The learned trial Judge held that it was too late in the day for the Appellant to wake up from his slumber and begin to complain about the primaries of the 7th defendant outside the 14 days provided by Section 285(9) of the 4th Alteration Act No. 21 of 2017 to the 1999 Constitution.
Section 285(9) provides:
Notwithstanding anything to the contrary in this constitution, every pre election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit?.
That by the above provision, any grievance, claim or interest connected or arising from the primary election of a political party must be filed within 14 days from the date of the event given rise to the grievance, claim or interest. There is no doubt whatsoever that the interest, grievance and claim of the Appellant upon which he sought to be joined was statute barred, it ceased to exist and the Court cannot under the guise of a joinder allow him to ventilate his grievances, claim or interest outside the 14th days provided
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by Section 285(9) of the 4th Alteration to 1999 Constitution. He referred to ATTORNEY GENERAL ADAMAWA STATE VS AG FEDERATION (2014) 14 NWLR (PT. 1428) 515 AT 559.
Counsel submitted that the imagined and speculative interest, right or claim of the Appellant had been lost by his failure to seek redress within 14 days. The Appellant cannot use the joinder to revive or give life to an interest relief or claim that died. The learned trial Judge was justified when he refused to lend himself to the purpose of the Appellant. This Honourable Court is urged to hold that the learned trial Judge was right when he refused the application for joinder.
That the Appellant has tried unsuccessfully in his brief to distance himself from the provisions of Section 285(9) of the 4th Alteration to the 1999 Constitution by asserting that his claim is anchored on Section 31(5) of the Electoral Act. According to Counsel, the entire case, claim and interest of the Appellant is tied to the primaries of the 7th Respondent. The basis of wanting to be joined is the primaries of the 7th Respondent. Even the reliefs sought from this Honourable Court are clearly anchored on the
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primaries of the 7th Respondent that places the entire case of the Appellant squarely within Section 285(9) of the 1999 Constitution (as amended). Even before this Honourable Court, the Appellant is seeking to replace the 6th Respondent as candidate of the 7th Respondent. That Section 285(9) has full application to the Appellant?s case and the learned trial Judge was justified to dismiss the Appellant?s application, as granting the application would amount to giving life to an imagined or speculative right of action that died 14 days after the primary election of the 7th Respondent which took place in October, 2018. He refers to the unreported decision of the Supreme Court in OBAYEMI TOYIN VS AROGUNDADE & ORS SC/307/2018 delivered on the 18th January 2018. That decision was applied and followed by this Honourable Court in HON. AMINU IBRAHIM MALLE VS KASIMU BELLO MAIGARI & ORS in Appeal No: CA/YL/27/2019 delivered on the 8/4/2019.
That even if it is conceded that the learned trial Judge was wrong in dismissing the application for joinder, that in itself will not result in granting the reliefs sought in this appeal.
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That the reliefs sought by the Appellant in this Appeal are:
1) An ORDER allowing the appeal.
2) An ORDER entering Judgment in favour of the Appellant and granting the following reliefs.
3) AN ORDER joining PROFESSOR MOHAMMED SANI YAHAYA as the 4th defendant in this Suit (FHC/JAL/CS/1/2019).
4) A DECLARATION that the 2nd defendant is entitled in law to nominate, sponsor and sustain PROFESSOR MOHAMMED SANI YAHAYA as its gubernatorial candidate of Taraba State in the General Elections slated for 9th day of March 2019 or such subsequent date as may be rescheduled and the 3rd defendant regard him as such.
5) AN ORDER directing the 3rd defendant to recognize, accept and accord to PROFESSOR MOHAMMED SANI YAHYA all rights, privileges, entitlements and certificates legally due to the 2nd defendant candidate for Taraba State gubernatorial election?.
According to Counsel, these reliefs are incompetent, abnormal, irregular and ungrantable. They are not such as can be granted by this Honourable Court. That this Honourable Court will take judicial notice that the elections to the office of Governor of Taraba State has come and gone.
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Additionally, the failure to join a party as the Appellant will not result in the Appeal been allowed on the grounds of non joinder alone. See Order 9 Rule 14(1) of the Federal High Court Civil Procedures Rules 2009. It reads:
No proceedings shall be defeated by reason of misjoinder or non joinder of parties and a judge may deal with the matter in controversy so far as regards the rights and interest of the parties actually before him.
Counsel refers to OKWU V. UME (2016) 4 NWLR (Part 1501) 120 at 143 Paragraphs C-E. He urged the Court to hold that the lower Court was justified in dismissing the application for joinder and dismiss the Appeal.
DETERMINATION OF THE APPEAL
The Appellant filed an application dated 1/02/19 before the lower Court as is shown at Pages 91 to 92 of the Record seeking to be joined as a defendant in the suit and deeming the counter affidavit, written address to the Originating Summons and his counter claim as properly filed and served. The relevant Paragraphs of the Appellant?s affidavit in support of the application are Paragraphs 8-15 thus:-
?8. I participated in the 2nd defendant?s screening
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and clearing of candidates for the said election and was successfully cleared to contest the election.
9. The 2nd defendant primary election for the office of Governor of Taraba State was conducted and the following result was declared.
a) Sani Abubakar Danladi – 60,629 votes
b) Sen. Joel Ikenya – 11,773
c) Prof. Mohammed Sani Yahaya – 7,299
d) Garba Umar UTC – 5,504
e) Comr. Bobboi Bala Kalgama – 5,504
f) Chief David Sabo Kente – 5,549
g) Aliyu Omar MON – 4,638
h) Chief Ezekiel Afunkoyo – 2,811
i) Mohammed Tumba – 1,888
j) Barr. Kabiru Umar Esq – 1,783
A copy of the result is attached as Exhibit D.
10. The 1st defendant and Sen. Joel Ikenya are not qualified to fly the 2nd defendant?s flag at the General Elections as a result of the following facts:
a) That the 1st defendant failed, neglected and/or refused to present legally valid and cognizable evidence that he is educated up to school certificate level or its equivalent. I will establish this fact in the substantive matter.
?b) The 1st defendant has presented to the 2nd and 3rd defendants the WAEC result of another
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different person incidentally named Abubakar Sani Danladi claiming to be the 1st defendant?s result.
c) The 1st defendant has presented a forged Certificate to the 2nd and 3rd defendants.
d) Senator Joel Ikenya is not qualified to run the 2nd defendant?s flag as he has been nominated and is standing election as Taraba South Senatorial Candidate of APGA.
11. I am the candidate with the highest valid votes cast at the primary election of the 2nd defendant and duly nominated as such.
12. The 2nd defendant is entitled to present me to the 3rd defendant as its qualified Gubernatorial Candidate for Taraba State gubernatorial election.
13. I am fully qualified and without any legal impediment as the candidate of the 2nd defendant for the Taraba State Gubernatorial Election.
14. The disqualification of the 1st defendant and Senator Joel Ikenya does not preclude the 2nd and 3rd defendants from recognizing, accepting and according me to be the duly nominated candidate of the 2nd defendant at the forth coming Taraba State Gubernatorial Election slated for 2nd day of March, 2019.
?15. That I have attached my proposed
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counter-affidavit, written address and notice of counter-claim to this suit as Exhibit E.
The application for joinder by the Appellant was opposed to by all the Respondents. In a Ruling delivered on 6th March, 2019, the lower Court held at Page 917 of the Record of Appeal thus:-
?A Court of law does not embark on a hypothetical determination of cases. The Applicant/Party seeking to be joined is inviting the Court to consider a motion to be joined as a party and determine that the Applicant/Party seeking to be joined is entitled to file a counter claim because Senator Joel Ikenya who came 2nd in the primary election of the 2nd defendant has waived his right yet he is not made a party to the application?.
?The party seeking to be joined as 4th defendant contested with the 1st defendant as such his counter-claim comes under pre-election matters and by Section 285(9) and (14) he was supposed to have filed his application within 14 days from the date of the announcement of the primary election result. He slept over his right and cannot now want to benefit after waking up from his slumber. Where the Constitution provides for
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the doing of a thing and it is not done within the stipulated period as prescribed in the Constitution no Court of law can enlarge time to an Applicant who refused to take advantage of the period when the act occurred. The party seeking to be joined is therefore not entitled to the reliefs sought and his application is accordingly incompetent as the Court finds no merit in it. The application is hereby dismissed?.
The issue for determination is whether the learned trial Judge was right when he refused the application for joinder. Joinder of parties as defendants is provided for under Order 9 Rules 5 of the Federal High Court Civil Procedure Rules 2009. It provides:
?Any person may be joined as defendant against whom the right to any relief is alleged to exist, whether jointly severally or in the alternative. Judgment may be given against any one or more of the defendants as may be found to be liable, according to their respective liabilities without any amendment?.
The above provision came up for interpretation before the Courts in a plethora of cases. In AJAYI VS JOLAYEMI (2001) 10 NWLR (PT. 722) 516 it was held by the
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Supreme Court that the only reason which makes a party a necessary party as to be joined in a suit is that he should be bound by the result which cannot be effectually settled without him.
What then was the question in the 1st ? 4th Respondents? claim before the lower Court? Can that question in the 1st -4th Respondents claim be determined without the Appellant being a party? The question before the lower Court was whether or not the 6th Respondent had lied as to his West African School Certificate (WAEC) submitted via his Form CF001 to the 5th Respondent by the 7th Respondent. Can that question be determined without the Appellant being a party to the proceedings? Put differently, did the 1st -4th Respondents make any claim against the Appellant as to have made his presence necessary in the proceedings?
This Court observes that there is no single claim against the Appellant in the action filed by the 1st-4th Respondents before the lower Court. An examination of the 1st-4th Respondents claim on pages 2 ? 4 of the record will show clearly that there is even no mention at all of the name or interest of the Appellant. There is nothing
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in the case of the 1st-4th Respondents that cannot be settled without the Appellant being a party. In such circumstances, it would have been wrong on the part of the learned trial Judge to make the Appellant a party to the suit.
Contrary to the position of the Appellant, the reliefs sought by the Appellant in his counter claim were anchored on allegations made against Senator Joel Ikenya as shown at paragraph 10(D) of the affidavit in support of the application for joinder before the lower Court at page 96 of the Records. The Appellant deposed thus:
?Senator Joel Ikenya is not qualified to run the 2nd defendant?s flag as he has been nominated and is standing election as Taraba South Senatorial Candidate of APGA?.
It therefore follows that the issues raised in the Appellant?s application for joinder could not have been effectively and conclusively determined without Senator Joel Ikenya being a party to the application in view of the allegation against him. Senator Joel Ikenya was a necessary party to the Appellant?s application for joinder. See GREEN VS GREEN (Supra) and JOKOLO VS KEBBI STATE (2009) 11 NWLR (PT. 1152) 394.
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Failure to join Senator Joel Ikenya therefore made the application incompetent and the learned trial Judge was right when he refused the application on that ground. See OKONTA VS PHILIPS (2010) 18 NWLR (PT. 1225) 320 at 326 ? 337 Paragraphs G ?B.
On the Counter Claim, the case of the Appellant is that the emergence of the Senator Joel Ikenya as the Senatorial Candidate of APGA for Taraba South and the alleged disqualification of the 6th Respondent ought to entitle him automatically to be the candidate of the 7th Respondent for the March 9th Governorship election to the office of Governor of Taraba State. That in plain language is the alleged interest of the Applicant/Appellant in seeking to be joined in the suit before the lower Court. See paragraphs 9 ? 16 of the affidavit in support for joinder filed before the lower Court at pages 95 ? 96 of the Records (Vol. 1).
?The learned trial Judge held that it was too late in the day for the Appellant to wake up from his slumber and begin to complain about the primaries of the 7th defendant outside the 14 days provided by Section 285(9) of the 4th alteration Act No. 21
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of 2017 to the 1999 Constitution. For clarity purposes
Section 285(9) provides:
Notwithstanding anything to the contrary in this constitution, every pre election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.
It therefore follows that by the above provision, any grievance, claim or interest connected or arising from the primary election of a political party must be filed within 14 days from the date of the event given rise to the grievance, claim or interest. There is no doubt whatsoever that the interest, grievance and claim of the Appellant upon which he sought to be joined was statute barred, it ceased to exist and the Court cannot under the guise of a joinder allow him to ventilate his grievances, claim or interest outside the 14 days provided by Section 285(9) of the 4th Alteration to 1999 Constitution. The Appellant filed his processes in January, 2019, while the primaries of the 7th Respondent took place in October, 2018. In the case of ATTORNEY GENERAL ADAMAWA STATE VS AG FEDERATION (2014)
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14 NWLR (PT. 1428) 515 AT 559. I.T. Muhammad JSC (as he then was) held:-
And the law is that, where an action has been barred by the operation of the limitation Act/Law as the case maybe, the effect is that the cause of action becomes extinguished by operation of law and can no longer be maintained in a Court of law. I entirely agree with the Court of Appeal in its decision in DAUDU VS UNIVERSITY OF AGRICULTURE MAKURDI & ORS (2002) 17 NWLR (PT. 796) at 384 – 385 paragraphs. H ? D where it stated inter alia:
Where a partys action is statute barred, the following legal consequences will follow:
a) The party would lose his right of action
b) The party lose the right of enforcement
c) The party will also irretrievably lose the right to judicial relief
d) The right would only have an empty cause of action which no Court will assist him to enforce?.
The interest, right or claim of the Appellant has been lost by his failure to seek redress within 14 days. The Appellant cannot use the joinder to revive or give life to an interest relief or claim that died. The learned trial Judge was
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justified when he refused to lend himself to the purpose of the Appellant. This Honourable Court therefore refused the application for joinder. This Honourable Court has taken judicial notice that the election to the office of Governor of Taraba State has come and gone. Additionally, the failure to join a party as the Appellant will not result in the Appeal been allowed on grounds of non joinder alone. Order 9 Rule 14 (1) of the Federal High Court Civil Procedures Rules 2009 reads:-
No proceedings shall be defeated by reason of misjoinder or non joinder of parties and a judge may deal with the matter in controversy so far as regards the rights and interest of the parties actually before him.
This Appeal is lacking in merit and is accordingly dismissed. Parties should bear their respective costs of the Appeal.
CHIDI NWAOMA UWA, J.C.A.: I agree.
JAMES SHEHU ABIRIYI, J.C.A.: I agree.
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Appearances:
P.D. Pius, Esq.For Appellant(s)
Yakubu Maikasuwa, Esq. for the 6th and 7th RespondentsFor Respondent(s)
Appearances
P.D. Pius, Esq.For Appellant
AND
Yakubu Maikasuwa, Esq. for the 6th and 7th RespondentsFor Respondent
