AIYEDOGBON v. KOLAWOLE & ORS
(2022)LCN/16126(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, September 16, 2022
CA/ABJ/CV/867/2022
Before Our Lordships:
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
CHIEF DAVID SHOLA AIYEDOGBON APPELANT(S)
And
1. HON. MATTHEW KOLAWOLE 2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 3. ALL PROGRESSIVES CONGRESS (APC) RESPONDENT(S)
RATIO
THE DUTY OF THE COURT WHERE AN ISSUE FOR DETERMINATION IS DISTILLED FROM BOTH COMPETENT AND INCOMPETENT GROUNDS OF APPEAL
It is hornbook law that where an issue for determination is distilled from both competent and incompetent grounds of appeal, it is not the duty of the Court to delve into the issue in order to excise or separate the arguments in respect of the competent grounds from the arguments in respect of the incompetent grounds. The Courts are not for such surgical procedures. See JEV vs. IYORTYOM (2014) 4 NWLR (PT 1426) 578 at 608, AGU vs. AYALOGU (1998) 1 NWLR (PT 532) 129, GEOSOURCE (NIG) LTD vs. BIRAGBARA (1997) 5 NWLR (PT 506) 607 and HASHIM vs. ASO SAVINGS (2022) LPELR (57061) 1 at 24-26. Such an issue is incompetent in its entirety and liable to be struck out: SEHINDEMI vs. GOV. LAGOS STATE (2006) 10 NWLR (PT 987) 1, ARIBO vs. CBN (2010) LPELR (4751) 1 at 29 and AJOBENA vs. MUJAKPERUO (2014) LPELR (23209) 1 at 12-13. PER OGAKWU, JC.A.
WHETHER OR NOT AN APPLICATION FOR JOINDER OF A PERSON AS A DEFENDANT IS ONE THAT IS GRANTED ONCE THE APPLICATION IS FILED
The above stipulation is explicit that the joinder of a person as a defendant is not an order that is granted once an application for such an order has been filed. In order for an applicant to be joined as a defendant, he has to be a person against whom the right to any relief is alleged to exist. From the reliefs claimed by the 1st Respondent, the Appellant cannot be a person against whom the right to any of the reliefs can be alleged to exist, as a result of which he is not a necessary party in the action. In the leading case of GREEN vs. GREEN (1987) LPELR (1338) 1 at 20, Oputa, JSC graphically explained the distinction between “proper parties”, “desirable parties” and “necessary parties” in the context of an application for joinder of parties as follows:
“Proper parties are those who, though not interested in the plaintiff’s claim, are made parties for some good reasons e.g. where an action is brought to rescind a contract, any person is a proper party to it who was active or concurring in the matters which gave the plaintiff the right to rescind. Desirable parties are those who have an interest or who may be affected by the result. Necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence the proceedings could not be, fairly dealt with. 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 they are parties to the action instituted by the plaintiff. Amon v. Raphael Tuck & Sons (1956) 1 W. B. 357; Settlement Corporation v. Roshschild (No.21) (1959) 1 W.L.R. 1664; Re Vandervills Trust (1971) A C. 812; Re Vandervelle Trust (1969) 3 All E R. 497.” PER OGAKWU, JC.A.
THE REQUIREMENT OF LAW FOR A PERSON TO BE JOINED IN A COURT ACTION
By all odds, the law is now well settled that for a person to be joined in an action, he must be someone whose presence is necessary as a party. What makes a person a necessary party is not, of course, merely that he has relevant evidence to give on some of the questions involved. That would only make him a necessary witness but not a necessary party. It is also not merely that the person has an interest in the correct solution of some questions involved and has thought of some relevant arguments to advance. That would mean that an infinite variety of persons could claim to be entitled to be heard in a case. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and his presence before the Court may be necessary in order to enable the Court effectively and completely adjudicate upon and settle all the questions involved in the cause or matter. See AMON vs. RAPHAEL TUCK & SONS LTD (1956) 1 Q.B. 357 at 380, PEENOK INVESTMENT LIMITED vs. HOTEL PRESIDENTIAL (1982) 12 SC 1, IGE vs. FARINDE (1994) 7 NWLR (PT 354) 42 at 50, JIA ENTERPRISES LIMITED vs. BRITISH COMMONWEALTH INSURANCE CO. LIMITED (1962) 1 ALL NLR (PT 2) 363, BELLO vs. INEC (supra) and UKU vs. OKUMAGBA (1974) All NLR (PT 1) 475. PER OGAKWU, JC.A.
THE PRINCIPLES GOVERENING THE ISSUE OF JOINDER OF PARTIES
In expounding the principles governing the issue of joinder of parties in AZUBUIKE vs. PDP (2014) LPELR (22258) 1 at 16-17, Fabiyi, JSC stated:
“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 misjoinder 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?”
See also APC vs. UDUJI (supra), ONEMU vs. COMMISSIONER FOR AGRICULTURE & NATURAL RESOURCES, ASABA (2019) LPELR (47391) 1 at 22-23 and BELLO vs. INEC (supra) at 77 where Adekeye, JSC intoned:
“In determining whether to join a person as a defendant in a suit, the Court will consider the following questions that is: a) Is it possible for the Court to adjudicate upon the cause of action set up by the plaintiff unless the person is added as a defendant? b) Is the person someone who ought to have been joined as a defendant in the first instance. c) Is the cause or matter liable to be defeated for non-joinder? These questions must be answered in the affirmative for the joinder to be justifiable.” PER OGAKWU, JC.A.
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court, Lokoja Division, delivered on 28th July 2022. The 1st Respondent herein, was the Plaintiff before the lower Court in an action which he commenced against the 2nd and 3rd Respondents herein, in SUIT NO. FHC/LKJ/CS/35/2022: HON. MATTHEW KOLAWOLE vs. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ANOR. The 1st Respondent claimed the following reliefs in the said action:
“1. A DECLARATION that the Claimant having won the Primary election conducted by the 2nd Defendant (APC), on the 27th of May, 2022 for the seat of Federal House of Representatives, Kabba-Bunu/Ijumu Federal Constituency in Kogi State, towards the 2023 General Election, is and remain the duly elected candidate of the 2nd Defendant to be sponsored for the Kabba-Bunu/Ijumu Federal Constituency under the platform of the 2nd Defendant, All Progressives Congress.
2. An Order Directing the 2nd Defendant to forward the name of the Plaintiff to the 1st Defendant as the sponsored candidate of the 2nd Defendant for the seat of Kabba-Bunu/Ijumu Federal Constituency in Kogi State towards the 2023 General Election.
3. An Order directing and mandating the 1st Defendant to unconditionally accept and publish on their portal and all or any other reasonable channel the name of the Plaintiff as the duly sponsored candidate of the 2nd Defendant for the seat of Kabba-Bunu/Ijumu Federal Constituency in Kogi State towards the 2023 General Election.
4. And such other ORDER that this Honourable Court may deem to make within the contemplation of this suit.”
By an application filed on 13th July, 2022, the Appellant herein applied to be joined as a defendant in the action. The application was opposed by the 1st and 3rd Respondents herein; and in its ruling, which was delivered on 28th July 2022, the lower Court dismissed the application. Peeved by the decision of the lower Court, the Appellant appealed against the same by Notice of Appeal filed on 2nd August 2022. The chafed decision of the lower Court is at pages 99-124 of the Records of Appeal; while the Notice of Appeal is at pages 125-129 of the Records of Appeal.
Upon the compilation and transmission of the Records of Appeal, briefs of argument were filed by the parties, save the 2nd Respondent, which did not file any brief and also did not appear at the hearing. In the Appellant’s Brief which was filed on 22nd August 2022, two issues were formulated for determination, as follows:
i. Whether the Court is justified by dismissing the motion for joinder of the Appellant considering the joint provisions of Order 9 Rule 5 of the Federal High Court Civil Procedure Rules 2019, Article 20 of the 3rd Respondent’s Guidelines for Nomination of Candidates for the 2022 General Elections and Section 29(1) of the Electoral Act 2022. This issue is distilled from ground 1, 2, 3.
ii. Whether the decision of the trial Court to dismiss the motion for joinder of the Appellant with cost awarded amounts to a breach of the Appellant’s constitutional right to fair hearing. This issue is distilled from ground 4, 5 of the grounds of appeal.
The 1st Respondent filed his brief on 1st September 2022, but the same was deemed as properly filed on 2nd September 2022. He distilled a sole issue for determination namely:
“Whether the trial Court can be faulted in dismissing the Appellant’s application with the cost, the Appellant having not satisfied the requirement of a necessary party for effective and effectual determination of the relief being sought in the originating summons. (distilled from grounds 1-5 of the Notice and Grounds of Appeal).”
The 3rd Respondent in his brief of argument filed on 30th August 2022, but deemed as properly filed on 2nd September 2022 adopted the issues distilled by the Appellant; he equally raised a preliminary objection challenging the competence of the appeal. The preliminary objection was incorporated and argued in the 3rd Respondent’s Brief. However, at the hearing of the appeal, learned counsel withdrew the said preliminary objection and it was struck out.
The Appellant filed a Reply Brief to the 1st Respondent’s Brief on 2nd September 2022 and another Reply Brief to the 3rd Respondent’s Brief on 1st September 2022. Both Reply Briefs were deemed as properly filed on 2nd September 2022.
I will proceed to review the submissions of learned counsel and then seamlessly resolve the appeal en bloc.
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that the lower Court failed to integrally consider the provisions of Order 9 Rule 5 of the Federal High Court (Civil Procedure) Rules, 2019, Section 29 (1) of the Electoral Act 2022 and Article 20 of the 3rd Respondent’s Guidelines for Nomination of Candidates for the 2022 General Elections. It was stated that the lower Court misconstrued the said provisions and refused to be bound or persuaded by them. It was asserted that the lower Court made the erroneous finding that the Appellant failed to show how the reliefs claimed affected him, when the said reliefs, if granted, would jeopardize the Appellant’s appeal to the 3rd Respondent about the conduct of the Primary election; given the stipulation of Section 29 (1) of the Electoral Act that candidates must emerge from a validly conducted primary election. It was maintained that the joinder of the Appellant was to make the Court aware that there was no valid primary election conducted by the 3rd Respondent.
It is the further contention of the Appellant that he had taken remedial domestic measures to contest the conduct of the primary election and that the 3rd Respondent’s Appeal Panel was still seised of his Petition, such that the 1st Respondent’s action would frustrate and overreach the Petition. The Appellant posited that the primary election was invalid and that the lower Court cannot put a seal of validity on the result of the primary election without hearing all the parties to the primary election. It was opined that the lower Court acted contrary to the decision in GREEN vs. GREEN (1987) 13 NWLR (PT 61) 481 and NBA vs. KEHINDE (2017) NWLR [no volume stated] (PT 1576) 225, which are to the effect that a necessary party is a person who should be bound by the result and question to be settled in the action. It was stated that it was not disputed that the Appellant was a candidate at the primary election, which made him interested in the reliefs claimed by the 1st Respondent, consequent upon which the lower Court ought to have suo motu joined him as a party pursuant to Order 9 Rule 14 (b) of the Federal High Court (Civil Procedure) Rules, 2019. The case of AZUBUIKE & ORS [sic] (2014) LPELR 22258 SC was referred to.
The Appellant’s submission on his second issue is that the failure of the lower Court to consider the application for joinder on the merit occasioned a grave miscarriage of justice, as it decided a different issue which was the substantive case at the interlocutory stage, without allowing the Appellant a fair hearing on the issue. The cases of KOTOYE vs. SARAKI (1993) NWLR [no volume stated] (PT 296) 710 at 721, AKINRIMISI vs. MAERSK (2014) ALL FWLR (PT 713) 1931 and ONWUEGBU vs. IBRAHIM (1997) 3 NWLR (PT 491) 110 were relied upon. It was further contended that the lower Court descended into the arena and pre-empted and speculated about the Appellant’s case when it held that a complainant about the conduct of the primary election cannot be a defendant in the 1st Respondent’s case vide ONYEKWULUJE vs. BENUE STATE GOVT. (2015) ALL FWLR 842 at 881. It was maintained that it is necessary to join the Appellant as a party so that his right to fair hearing will not be breached as his interest will be directly affected by the decision of the trial Court. The case of MBANEFO vs. MOLOKWU (2014) ALL FWLR [no part stated] 1665 was called in aid. It was conclusively stated that there was no justification for the cost awarded against the Appellant.
SUBMISSIONS OF THE 1ST RESPONDENT’S COUNSEL
The 1st Respondent submits that his action at the lower Court seeks relief in respect of the statutory duties, responsibilities and obligations of the 2nd and 3rd Respondents’ against the background of the provisions of Sections 29 (1) and 32 of the Electoral Act, 2022. The case of BELLO vs. INEC (2010) LPELR-767 (SC) at 76-77 was referred to on the conditions to be fulfilled in an application for joinder, relative to the reliefs sought in the action; which conditions the Appellant did not satisfy, as the lower Court rightly held that the Appellant had not shown how he was affected by the reliefs claimed by the 1st Respondent.
It was stated that the Appellant’s position is that no valid primary election was held and that he misconstrues the 1st Respondent’s action to be one seeking for the Court to declare the 1st Respondent the winner of the primary election. It was opined that the 1st Respondent’s relief was not to be declared winner, having already been declared the winner of the primary election. It was then stated that the Appellant’s contention was at variance with that of the 1st and 3rd Respondents and that in such circumstances an application for joinder shall be refused since they do not have a common interest vide CO-OPERATIVE & COMMERCE BANK (NIG) PLC vs. ROSE U. (1998) LPELR-8091 (CA) at 21-22.
It was asserted that the Constitution and Guidelines of the 3rd Respondent provide for internal remedial measures for a person dissatisfied with the conduct of primary election, but that the Appellant did not comply with the steps stipulated in the Guidelines. It was posited that the Appellant having been aggrieved with the outcome of the primary election is mandatorily required by Section 285 (9) of the 1999 Constitution to institute an action within 14 days of the date of the primary election; but that the Appellant only filed his motion for joinder forty-three (43) days after the date of the primary election. It was maintained that the Appellant was not a necessary party since the action can be properly settled without him as a party. The case of SIFAX (NIG) LTD vs. MIGFO (NIG) LTD (2018) LPELR-49735 at 107 was relied upon.
Still in argument, the 1st Respondent contended that the Appellant was not denied fair hearing as the lower Court heard him on the application for joinder. The cases of DIAMOND BANK vs. HOLLIST (2015) LPELR-26023 at 22 and NDUKAUBA vs. KOLOMO (2005) LPELR-1976 (SC) at 24-25 were cited in support of the concept of fair hearing. It was conclusively submitted that the lower Court did not decide the substantive matter at the interlocutory stage, and that even if it did, it was only an existing party in the action that could so complain. It was asserted that the costs awarded against the Appellant was justified, in the exercise by the lower Court of its discretion pursuant to Order 25 Rule 1 (1) of the Federal High Court (Civil Procedure) Rules, 2019. The case of NNPC vs. CLIFCO NIG LTD (2011) LPELR-2022 (SC) at 23 was called in aid.
SUBMISSIONS OF THE 3RD RESPONDENT’S COUNSEL
The 3rd Respondent argues that by Order 9 Rule 5 of the Federal High Court (Civil Procedure) Rules, 2019, an applicant for joinder must satisfy two conditions, namely, the allegation of the existence of the right to any relief against him and that the question before the Court cannot be effectively resolved without him. It was asserted that the Appellant did not establish the conditions in order for him to be joined as a party. Referring to the case of APC vs. UDUJI (2020) 2 NWLR (PT 1744) 571 on the questions a Court must ask itself in an application for joinder; it was maintained that the materials relied upon by the Appellant did not satisfy the questions.
It is the further submission of the 3rd Respondent that the Appellant did not show that there was an appeal committee looking into his complaint as the document relied on shows a five-member committee that has nothing to do with the primary election, whereas the 3rd Respondent’s Guidelines provides in Article 20 (c) for a three-member appeal committee. It was posited that since the Appellant’s complaint is that there was no valid primary election, he ought to have filed an action to seek redress, which as held in GBENGA vs. APC (2020) 14 NWLR (PT 1744) 248 at 274 is the best place for ultimate redress in pre-election matters.
On the second issue, the 3rd Respondent states that the constitutional provisions of fair hearing are as entrenched in the common law concept of the twin pillars of natural justice and that it is for the person who alleges breach of his fair hearing to prove the said breach. The case of B.C.C. LTD vs. IMANI & SONS LTD/SHELL TRUSTEES LTD (2007) ALL FWLR (PT 348) 806 at 815 was cited in support. It was maintained that the Appellant’s right to fair hearing was not breached as the allegation of breach of fair hearing lies in the procedure employed in the conduct of the proceedings and not in the correctness of the decision thereof. The cases of POPOOLA vs. NIGERIAN ARMY (2022) 6 NWLR (PT 1825) 1 at 28 and INAKOJU vs. ADELEKE (2007) 14 NWLR (PT 1025) 423 were relied upon.
It was asserted that the lower Court did not determine the substantive case at the interlocutory stage and that the lower Court did not pre-empt the Appellant’s case but only decided the application for joinder based on the processes filed. It was conclusively submitted that the lower Court judicially and judiciously exercised discretion by awarding costs against the Appellant. The cases of CAPPA & D’ALBERTO (NIG) PLC vs. NDIC (2022) 9 NWLR (PT 1780) 1 at 14 and REGD TRUSTEES, DEEPER CHRISTIAN LIFE MINISTRY vs. EBHODAGHE (2017) ALL FWLR (PT 877) 387 at 403 were called in aid.
APPELLANT’S REPLY ON LAW
The Appellant in his Reply Briefs maintained that he properly followed the Guidelines on the internal remedial mechanism of the 3rd Respondent, which is still unexhausted; and that it is settled law that the same has to be exhausted before recourse to the Court vide ORAKUL RESOURCES LTD vs. NCC (2022) 6 NWLR (PT 1827) 552. It was asserted that the application for joinder is an interlocutory application that goes to the jurisdiction of the Court and once it is dismissed, it affects the fair hearing of a party in the suit. The case of APC vs. UDUJI (2020) 2 NWLR [no part stated] 541 was referred to. It was posited that the pursuit of the internal remedy mechanism was a distinguishing factor which put the invocation of Section 285 (9) of the 1999 Constitution in abeyance since the appeal committee had not made a decision.
At the hearing of the appeal, the learned counsel for the parties, except the 2nd Respondent who was not represented by Counsel, adopted and relied on their respective briefs of argument. The Court, suo motu, raised the competence of the Appellant’s ground four of the grounds of appeal which is an appeal against the costs awarded by the lower Court. The Court also raised the issue of the competence of the Appellant’s issue number two which was said to have been distilled from grounds four and five of the grounds of appeal. In his submission on the issues raised suo motu by the Court, the learned counsel for the Appellant stated that the Appellant did not seek or obtain leave of Court to appeal against costs. He further stated that even if ground four of the grounds of appeal is incompetent, that issue number two which was formulated from grounds four and five of the grounds of appeal remained a competent issue.
Now, ground four of the grounds of appeal complains about the costs awarded against the Appellant by the lower Court. The Appellant has conceded that he did not obtain leave of Court to appeal against the costs awarded against him. Section 241 (2) (c) of the 1999 Constitution (as amended) stipulates as follows:
“(2) Nothing in this section shall confer any right of appeal –
(c) without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.”
Equally, Section 14 (1) of the Court of Appeal Act provides as follows:
“Where, in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter; an appeal shall, by leave of that Court or of the Court of Appeal, lie to the Court of Appeal; but no appeal shall lie from any order made ex parte, or by consent of the parties, or relating only to costs.”
In the recent decision of this Court in JANKADA vs. OLORUNTOBA (2022) LPELR (57058) 1 at 23-30, I was privileged to state the following on the vexed issue of an appeal against costs:
“Much ink has been spilled on the question of whether leave of Court is required when a ground of appeal on costs is one of several grounds of appeal raised against the decision of a High Court or the Federal High Court. In aliis verbis, whether leave of Court is necessary where the appeal is not as to costs only, id est, where costs is only one of the several grounds of appeal raised against a decision. The decisions of this Court straddle both sides of the spectrum. For instance, and to mention only a few, it has been held in OMAME vs. NIGERIA POLICE FORCE (2021) LPELR (54747) 1 at 9-10, GTB vs. ALEOGENA (2019) LPELR (46922) 1 at 13-15 and UNION BANK vs. TOYINBO (2008) LPELR (5056) 1 at 41-43 that where the ground of appeal on costs is only one of several other grounds of appeal, then leave of Court is not required for a ground of appeal on costs. Contrariwise, in some other decisions, again to mention a few, it has been held by this Court that irrespective of the number of grounds of appeal raised against a decision, so long as a ground on costs is involved, leave of Court will be required for the said ground of appeal on costs. See for instance: NICON INSURANCE CORPORATION vs. OLOWOFOYEKU (2005) LPELR (5946) 1 at 15-16, SPDC vs. MILLER (2013) LPELR (22872) 1 at 7 and SIDUS TELECOMMUNICATIONS ENGINEERING CORPORATION LTD vs. STANBIC IBTC (2020) LPELR (51629) 1 at 17-22.
The Appellant appealed on four grounds of appeal. It is only ground two that is in respect of costs. Grounds one, three and four are not in respect of costs. So the appeal is not in respect of costs only. In the circumstance, does the Appellant require leave to appeal on the said ground as to costs in line with the stipulations of Section 241 (2) (c) of the 1999 Constitution (as amended) and Section 14 of the Court of Appeal, Act? This Court has not spoken with one voice in this regard. Happily, the apex Court has been consistent in its position and based on the doctrine of stare decisis or binding precedent, I am obligated to kowtow and follow the decision of the apex Court. In MEKWUNYE vs. EMIRATES AIRLINES (2019) LPELR (46553) 1 at 8-9, Eko, JSC stated:
‘I am the least convinced that the very persuasive decision of the Court of Appeal in A.C.B. v. OKONKWO (1997) 1 NWLR (Pt. 480) 194 which applied the provisions of Section 220 (2) (c) of the 1979 Constitution, in pari materia with Section 241 (2) (c) of the extant 1999 Constitution, is not apposite. Section 241 (2) (c) of the Constitution does not intend to confer right of appeal, as of right, on the Appellant complaining about costs in an appeal from the High Court to the Court of Appeal. I completely endorse the statement of law on this by Ejiwunmi, JCA (as he then was) in A.C.B. v. OKONKWO (supra), to wit – A party cannot appeal on failure of the High Court to award costs without first obtaining the leave of either the Court of Appeal or of the High Court. This is the requirement of Section 220 (2) (c) of the 1979 Constitution. In this case, since the 1st Respondent did not obtain leave, the ground of appeal in the cross-appeal complaining against costs ought to be struck out and the issue formulated from it becomes a non-issue. Accordingly, I agree with the Appellant that the Respondent’s complaint in ground 4 of the Grounds of Appeal at the lower Court, from which the Respondent as the appellant at the lower Court formulated its issue 4, is incompetent having been raised without leave either of the trial High Court or the lower Court. This Court has been consistent on this point as can be seen from GOVERNOR, EASTERN NIGERIA V. ONYELU (1965) ALL NLR 690. The Court of Appeal followed the decisions in UNIFAM IND. LTD. v. OCEANIC BANK (supra); ASIM NIG. LTD. v. LBRDA (supra); ONUIGBO v. NWEKESON (1993) 3 NWLR (Pt. 283) 533 at 546. I will not depart from these precedents, at least on the doctrine of stare decisis.’
In contributing to the issue, Odili, JSC stated as follows at pages 74-76:
‘The question herein raised has brought into focus Section 241 (1) of the 1999 Constitution of the Federal Republic of Nigeria and Sub-section (2) (c) thereof provides thus: – “Nothing in this section shall confer any right of appeal – (c) without the leave of the Federal High Court or High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only”… On this issue of cost the Court of Appeal and the Apex Court have set the record straight thereof to the effect that an appeal complaining on the issue of cost is not as of right. I shall cite a few of those cases for effect. See Governor, Eastern Nigeria v Onyelu (1965) All NLR 197 at 198 … Adeyemi v Awobokun 1968 All NLR 690 where the position in the Onyelu case was adopted in toto. The Court of Appeal lately in Asims Nig. Ltd v LBRBDA (2002) 8 NWLR (Pt. 769) 349, held that “at any rate, Section 241 (2) (c) of the 1999 Constitution which corresponds with Section 220 (2) (c) of the 1979 … Constitution does not confer right of appeal on a party on issue of costs” per Muhammad, JCA (as he then was) at page 366, Para. D. The Court of Appeal reiterated the same legal position in Unifam Ind. Ltd v Oceanic Bank Intl (Nig.) Ltd (2005) NWLR (Pt. 911) 83 when it held that: – “a successful party is generally entitled to the cost of the litigation. However if a party is aggrieved by the order of a Court of law as it relates to cost, he does not appeal as of right. He must first seek and obtain the leave of Court before an appeal can be lodged against an order relating to cost” per Aderemi, JCA (as he then was) at page 102… Recently in Oketade v Adewunmi (2010) 3 (Pt. II) MJSC 31 where the appellant filed three (3) grounds of appeal (see page 39, paragraphs D-F thereof) the Supreme Court confirmed the above decisions of the Court of Appeal on the issue of costs when it held at page 42, paras. F-G and page 45, paras. C-E that: – “It is trite that appeal does not lie as of right against an award of costs by a Court. The cases of Unifam Ind. Ltd v Oceanic Bank Intl (Nig.) Ltd (2005) 3 NWLR (Pt. 911) 83 at 102 and Asims (Nig.) Ltd v Lower Benue River Basin Dev. Authority (2002) 8 NWLR (Pt. 769) 349 cited by learned counsel for the respondents are in point. I endorse the views ably expressed in both cases” per Fabiyi, JSC at page 45. The issue herein has been rested as the cases above cited show and so the Court of Appeal had no jurisdiction sequel to Section 241 CFRN to entertain the appeal on ground of legal costs without leave of either the trial Court or of itself, the Court of Appeal. See Onuigbo v Nwekeson (1993) 3 NWLR (Pt. 283) 533 at 546 (CA), A.C.B. v Okonkwo (1997) 1 NWLR (Pt. 480) 194 at 207 (CA).’
In keeping with the settled state of the law as laid down by the apex Court, since the Appellant did not obtain leave to appeal on costs, ground two of the grounds of appeal is hereby struck out and the issue number two formulated therefrom is equally struck out since it has become a non-issue, not having been distilled from a competent ground of appeal.”
The foregoing represents the state of the law as I understand it. Leave of Court, first had and obtained is a pre-requisite and condition precedent to appeal against an order of costs. Section 241 (2) (c) of the 1999 Constitution (as amended) has prescribed the manner in which an appeal against costs is to be made; the law remains that where leave to appeal is necessary, leave must be obtained in order for there to be a competent appeal or competent ground of appeal: OGEMBE vs. USMAN (2011) LPELR (8155) 1 at 24-25, OKOLONWAMU vs. OKOLONWAMU (2019) LPELR (46942) 1 at 28 and SYSTEMS APPLICATIONS PRODUCTS (NIG) LTD vs. B4G CONSULTING LTD (2021) LPELR (52808) 1 at 9-12. In the circumstances, ground four of the grounds of appeal is incompetent and it is hereby struck out.
The Appellant’s ground five of the grounds of appeal raises the issue of fair hearing. This is a valid ground of appeal. However, the Appellant in formulation of the issues for determination framed issue number two from both grounds four and five of the grounds of appeal. I have already held that ground four of the grounds of appeal is incompetent and struck the same out. The Appellant, having distilled his issue number two from grounds four and five of the grounds of appeal means that the said issue has been formulated from both an incompetent ground of appeal and a competent ground of appeal. It is hornbook law that where an issue for determination is distilled from both competent and incompetent grounds of appeal, it is not the duty of the Court to delve into the issue in order to excise or separate the arguments in respect of the competent grounds from the arguments in respect of the incompetent grounds. The Courts are not for such surgical procedures. See JEV vs. IYORTYOM (2014) 4 NWLR (PT 1426) 578 at 608, AGU vs. AYALOGU (1998) 1 NWLR (PT 532) 129, GEOSOURCE (NIG) LTD vs. BIRAGBARA (1997) 5 NWLR (PT 506) 607 and HASHIM vs. ASO SAVINGS (2022) LPELR (57061) 1 at 24-26. Such an issue is incompetent in its entirety and liable to be struck out: SEHINDEMI vs. GOV. LAGOS STATE (2006) 10 NWLR (PT 987) 1, ARIBO vs. CBN (2010) LPELR (4751) 1 at 29 and AJOBENA vs. MUJAKPERUO (2014) LPELR (23209) 1 at 12-13. Inexorably, the Appellant’s issue number two having been contaminated by the incompetent ground four, the said issue number two is ipso jure impotent and incompetent and the Court has no business whatsoever to deal with the issue. See WILKEY vs. OGIEGBAEN (2001) FWLR (PT 71) 1729 at 1739, EGBE vs. ALHAJI (1990) 1 NWLR (PT 128) 546, EBBA vs. OGODO (1984) 4 SC 84 at 112 and THE STATE vs. OLADIMEJI (2003) LPELR (3225) 1 at 8. Premised on the foregoing, the impotent and incompetent issue number two ought to play no further part in the consideration of this appeal and I will accordingly discountenance all the submissions made on the said issue. The resolution of this appeal will consequently be predicated on the Appellant’s issue number one, which is the only valid and proper issue before the Court.
I have already set out the reliefs claimed by the 1st Respondent as Plaintiff before the lower Court. From the reliefs claimed, it is clear that the validity of the primary election from which the 1st Respondent emerged as the 3rd Respondent’s candidate for the Kabba/Bunu/Ijumu Federal Constituency is not in issue. Indeed, the reliefs claimed are in respect of the performance by the 3rd and 2nd Respondents of the duty to submit the name of the 1st Respondent as the candidate and for the said name to be accepted.
On the other hand, the purpose of the Appellant seeking to be joined in the action is for him to contend that there was no valid primary election, which is an entirely different cause of action. The Appellant’s stance is graphically captured in paragraph 14 on page 5 of the Appellant’s Brief where it is stated:
“14. The position of the Appellant and in fact the sole reason for the Appellant’s motion for joinder was to make aware to the Court the very crucial point which all the parties before it had failed to mention and which was fundamental to the effective determination of this suit. This important fact was that there had been no valid primaries conducted by the 3rd Respondent in respect to Kabba-Bunu/Ijumu Federal Constituency and that the deposition of the 1st Respondent that he had been validly elected was in fact false.”
It is rudimentary law that in commencing an action, a plaintiff or claimant has the liberty of deciding who he wants to sue based on his perception of who has wronged him and who he therefore has a right to claim a relief against. On the peculiar facts of this matter, the 1st Respondent’s contention is that having won the primary election the next step in the process was for his name to be submitted to the 2nd Respondent by the 3rd Respondent. This not having been done and the time limited to do so having expired, the 1st Respondent resorted to litigation to enforce his right, settling for the persons directly involved in this regard, namely the 3rd and 2nd Respondents and sued them.
The parties are agreed that in circumstances where a person desires to be joined as a defendant in an action at the lower Court, that the governing rule is Order 9 Rule 5 of the Federal High Court (Civil Procedure) Rules, 2019. The said Rule provides as follows:
“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 one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment.”
(underlining supplied)
The above stipulation is explicit that the joinder of a person as a defendant is not an order that is granted once an application for such an order has been filed. In order for an applicant to be joined as a defendant, he has to be a person against whom the right to any relief is alleged to exist. From the reliefs claimed by the 1st Respondent, the Appellant cannot be a person against whom the right to any of the reliefs can be alleged to exist, as a result of which he is not a necessary party in the action. In the leading case of GREEN vs. GREEN (1987) LPELR (1338) 1 at 20, Oputa, JSC graphically explained the distinction between “proper parties”, “desirable parties” and “necessary parties” in the context of an application for joinder of parties as follows:
“Proper parties are those who, though not interested in the plaintiff’s claim, are made parties for some good reasons e.g. where an action is brought to rescind a contract, any person is a proper party to it who was active or concurring in the matters which gave the plaintiff the right to rescind. Desirable parties are those who have an interest or who may be affected by the result. Necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence the proceedings could not be, fairly dealt with. 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 they are parties to the action instituted by the plaintiff. Amon v. Raphael Tuck & Sons (1956) 1 W. B. 357; Settlement Corporation v. Roshschild (No.21) (1959) 1 W.L.R. 1664; Re Vandervills Trust (1971) A C. 812; Re Vandervelle Trust (1969) 3 All E R. 497.”
By all odds, the law is now well settled that for a person to be joined in an action, he must be someone whose presence is necessary as a party. What makes a person a necessary party is not, of course, merely that he has relevant evidence to give on some of the questions involved. That would only make him a necessary witness but not a necessary party. It is also not merely that the person has an interest in the correct solution of some questions involved and has thought of some relevant arguments to advance. That would mean that an infinite variety of persons could claim to be entitled to be heard in a case. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and his presence before the Court may be necessary in order to enable the Court effectively and completely adjudicate upon and settle all the questions involved in the cause or matter. See AMON vs. RAPHAEL TUCK & SONS LTD (1956) 1 Q.B. 357 at 380, PEENOK INVESTMENT LIMITED vs. HOTEL PRESIDENTIAL (1982) 12 SC 1, IGE vs. FARINDE (1994) 7 NWLR (PT 354) 42 at 50, JIA ENTERPRISES LIMITED vs. BRITISH COMMONWEALTH INSURANCE CO. LIMITED (1962) 1 ALL NLR (PT 2) 363, BELLO vs. INEC (supra) and UKU vs. OKUMAGBA (1974) All NLR (PT 1) 475.
In expounding the principles governing the issue of joinder of parties in AZUBUIKE vs. PDP (2014) LPELR (22258) 1 at 16-17, Fabiyi, JSC stated:
“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 misjoinder 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?”
See also APC vs. UDUJI (supra), ONEMU vs. COMMISSIONER FOR AGRICULTURE & NATURAL RESOURCES, ASABA (2019) LPELR (47391) 1 at 22-23 and BELLO vs. INEC (supra) at 77 where Adekeye, JSC intoned:
“In determining whether to join a person as a defendant in a suit, the Court will consider the following questions that is: a) Is it possible for the Court to adjudicate upon the cause of action set up by the plaintiff unless the person is added as a defendant? b) Is the person someone who ought to have been joined as a defendant in the first instance. c) Is the cause or matter liable to be defeated for non-joinder? These questions must be answered in the affirmative for the joinder to be justifiable.”
I have cogitated and excogitated over the questions which this Court is to ask itself and I am unable to give an affirmative answer to any of the questions in order to see my way clear in the Appellant being joined as a defendant. Without a doubt, the 1st Respondent’s cause of action and reliefs claimed can be effectively and completely adjudicated upon and all questions involved in the action settled without the Appellant being made a party. The decision of the lower Court dismissing the Appellant’s application for joinder is therefore the correct decision as the Appellant is neither a proper, desirable nor necessary party in the 1st Respondent’s action.
The cause of action which the Appellant seeks to ventilate as eloquently set out paragraph 14 of the Appellant’s brief, which I have already reproduced, cannot be pitchforked into the 1st Respondent’s action, by an order joining the Appellant to the 1st Respondent’s action. It is a cause of action which the Appellant is to pursue in an independent action, as plaintiff. It is in such an action that the accidence of Section 29 (1) of the Electoral Act, 2022 on the conduct of valid primary election and the “abysmal” vel non, of the 3rd Respondent’s primary election which the Appellant contests, can be interrogated. The same applies with equal force to the pursuit of the internal dispute resolution mechanism in Article 20 of the 3rd Respondent’s Guidelines for Nomination of Candidates. It would be premature to interrogate in this ruling whether there is any proper pursuit of the said internal dispute resolution mechanism by the Appellant or whether indeed the appeal committee charged with resolution of the Appellant’s petition is still seised of the matter, about four months after the primary election, relative to the provisions of Section 285 (9) of the 1999 Constitution on limitation period to complain about the conduct of a primary election. Suffice it to say that in so far as the Appellant’s grouch relates to the validity of the primary election, it is separate and distinct from the 1st Respondent’s action.
The kerfuffle made by the Appellant on the alleged breach of his right to fair hearing is unavailing in the diacritical circumstances of this matter. The Appellant’s application before the lower Court was for joinder as a defendant to the 1st Respondent’s action. The lower Court fully heard the Appellant on the application and dismissed the same. So the Appellant was given a fair hearing on the process which he brought to Court. It is only if the application had succeeded that the Appellant would have been entitled to be afforded a hearing in the substantive matter. In the light of the fact that the lower Court rightly dismissed the Appellant’s application, there can be no issue of evisceration of the right to fair hearing on the contrived ground that the Appellant would not be heard in the substantive matter. The complaint of breach of fair hearing can only be raised and avail a litigant when in fact the right had been denied. See ADEBAYO vs. A-G OGUN STATE (2008) 7 NWLR (PT 1085) 201 at 205-206 or (2008) LPELR (80) 1 at 23-24, MAGAJI vs. NIGERIAN ARMY (2008) LPELR (1814) 1 at 40 and ORUGBO vs. UNA (2002) 16 NWLR (PT 792) 175 at 211 and 212.
In summation, since no right to any relief is alleged to exist against the Appellant in the 1st Respondent’s action to necessitate the joinder of the Appellant as a defendant in the matter, this appeal is devoid of merit and it is consequently dismissed. The decision of the lower Court delivered on 28th July 2022 is affirmed. There shall be costs of N100,000.00 in favour of each of the 1st and 3rd Respondents.
MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment of my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA just delivered. I agree with his conclusions that the appeal is devoid of merit and it is consequently dismissed.
The decision of the lower Court delivered on 28th July 2022 is hereby affirmed.
I abide by the consequential orders.
FOLASADE AYODEJI OJO, J.C.A.: I had the advantage of reading in draft, the leading judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA. I entirely agree with his reasoning and conclusion.
The facts of this case have been fully set out in the leading judgment. Suffice to say that the crux of the Appellant’s application before the lower Court is that as a member of the 3rd Respondent and an aspirant in the primary election conducted on 27th of May, 2022 who has questioned the conduct of the primary election by filing a Petition to the appeal Committee set up by his party he is a necessary party to the action filed by the 1st Respondent. The question now is whether the instant Appellant is a necessary party to the suit of the 1st Respondent.
Section 84(14) of Electoral Act, 2022 provides as follows:
“Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court for redress.”
The above provision provides a window for any aspirant who is dissatisfied with the conduct of the primary election of his party on the ground that the provisions of the Electoral Act and/or his party’s Guidelines have been breached to ventilate his grievance at the Federal High Court. See EZE VS. PEOPLES DEMOCRATIC PARTY (2019) 1 NWLR (PT. 1652) 1; PEOPLES DEMOCRATIC PARTY VS. ORANEZI (2018) 7 NWLR (PT. 1618) 245; ZAKIRAI VS. MUHAMMED (2017) 17 NWLR (PT. 1594) 181; JEV VS IYORTYOM (2015) 15 NWLR (PT. 1483) 484.
I am at one with my learned brother when he held that the cause of action disclosed in the Appellant’s application is that which he (Appellant) ought to have pursued in an independent action as a Plaintiff. The learned trial Judge was therefore right when he found and concluded as follows at page 124 of the printed Record:
“A Complaint that a Political Party did not conduct primaries in accordance with the Electoral Act, or the Constitution of the Political Party cannot be a Defendant in an action but a Plaintiff: See Section 84 of the Electoral Act, 2022. Appellant should be seen to challenge the process by filing a suit not to join or be joined to an existing suit as a Defendant.”
The law is settled that where a statute provides for the manner of doing a particular act, only the manner specified by the Statute will suffice. See ABUBAKAR VS. YAR’ADUA (2008) 19 NWLR (PT. 1120)1: AKUNEZIRI VS. OKENWA (2000) 15 NWLR (PT. 691)526; UDE VS. NWARA (1993) 2 NWLR (PT. 278)638; UNIVERSITY OF NIGERIA TEACHING HOSPITAL MANAGEMENT BOARD VS. NNOLI (1994) 8 NWLR (PT. 363) 376.
The Appellant can only validly challenge the conduct of his party’s primaries by instituting an action as Plaintiff at the lower Court. The application for joinder filed by him is thus a nullity and an abuse of judicial process.
The law is settled that once a Court is satisfied that any proceedings before it is an abuse of judicial process it has the power and indeed the duty to dismiss it. See NWOSU VS. PEOPLES DEMOCRATIC PARTY (2018) 14 NWLR (PT. 1640) 532; DINGYADI VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2011) 10 NWLR (PT. 1255) 347; LADOJA VS. AJIMOBI (2016) 10 NWLR (PT. 1519) 87; OGBORU VS. UDUAGHAN (2013) 13 NWLR (PT. 1370) 33; ONYEABUCHI VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2002) 8 NWLR (PT. 769) 47.
The application of the Appellant to join as Co-Defendant in an action instituted by the 1st Respondent is an improper use of judicial process. It was filed in contravention of the provisions of Section 84(14) of the Electoral Act (supra). It is an abuse of Court process and I so hold. The lower Court was therefore right when it dismissed it.
It is for the above and the more comprehensive and elaborate reasons contained in the leading judgment that I also hold that this appeal lacks merit and should be dismissed. It is also dismissed by me. I abide by all consequential orders in the leading judgment including the order as to costs.
Appearances:
Dr. Adekunle Oladapo Otitoju, For Appellant(s)
S. A. Abbas, Esq. – for 1st Respondent
Funsho Boluromi, Esq. – for 3rd Respondent
2nd Respondent served but absent and not represented by counsel For Respondent(s)
