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AIYEDOGBON v. SAMUEL & ORS (2022)

AIYEDOGBON v. SAMUEL & ORS

(2022)LCN/16127(CA)

In the Court of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, September 16, 2022

CA/ABJ/CV/868/2022

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. OLOBATOKE SEGUN SAMUEL 2. ALL PROGRESSIVES CONGRESS 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 4. PRINCE KOLAWOLE OLUSHOLA MATTHEW RESPONDENT(S)

 

RATIO

WHETHER OR NOT A COURT CAN GRANT AN APPLICATION FOR JOINDER WHERE THE COURT LACKS JURISDICTION

In circumstances, where the Court will not have jurisdiction to entertain such an issue then it will be inutile to grant the application for joinder. In the peculiar circumstances of this matter, it cannot be confuted that fourteen (14) days from the date of primary election which the Appellant considers “abysmal” and a “charade” has long elapsed; such that any such challenge has become statute-barred. In C.S. MBHCo. vs. EMESPO J. CONT. LTD (supra), this Court, per Galadima, JCA (as he then was) held as follows at pages 214-215:
“It is well settled law that an application for the joinder of a party to an action must be made within and not outside the period of limitation. Where a cause of action is statute-barred or has abated, it cannot be resuscitated by a joinder. See Benson Ige v. Babajide Farinde (1994) 7 NWLR (Pt. 354) p. 42 at 50; Isa Mallam v. Wakili Mairiga (1991) 5 NWLR (Pt. 189) page 114 at 118; Uku v. Okumagba (1974) 3 SC 35; Ojo v. Awe (1962) WRNLR 254. PER OGAKWU, J.C.A.

WHETHER OR NOT THE QUESTION OF PERIOD OF LIMITATION IS A MATTER OF PRACTICE AND PROCEDURE

The question of period of limitation of actions is not to be seen as a matter of practice and procedure. It is rather a matter of law as contained in the relevant statutes. Once an action is caught by statute, the Court has no jurisdiction to entertain the matter. There is a feature in the case which prevents the Court from exercising its jurisdiction because the condition precedent for the exercise of that jurisdiction is not yet fulfilled. See Raleigh Ind. (Nig.) Ltd. v. Nwaiwu (1994) 4 NWLR (Pt. 341) 760, Madukolu v. Nkemdilim (1962) 2 SCNLR 341 and Savannah Bank (Nig.) Ltd. v. Pan Atlantic Shipping and Transport Agencies Ltd. (1987) 1 NWLR (Pt. 49) p. 212.”
See also YAHAYA vs. UDI (2019) LPELR (47426) 1 at 32-35.
PER OGAKWU, J.C.A.

WHETHER OR NOT A COURT IS BOUND TO MAKE A PRONOUNCEMENT ON DISPARATE CONTENTIONS PLACED BY PARTIES BEFORE IT

The law is settled beyond peradventure that a Court is bound to make a pronouncement on the disparate contentions placed by the parties before it and their effect on the matter. See EJOWHOMU vs. EDOK-ETER MANDILAS LTD (1986) 9 SC 41 at 102-103, AKINTOLA vs. SOLANO (1986) LPELR (360) 1, MARINE MANAGEMENT ASSOCIATES INC vs. NMA (2012) LPELR (20618) 1 at 27, ADEBAYO vs. A-G OGUN STATE (2008) LPELR (80) 1 at 17 and NKUMA vs. ODILI (2006) LPELR (2047) 1 at 17. In the circumstances, the lower Court making a pronouncement on the legal effect of the submissions made before it, is definitely not raising an issue suo motu; rather, it is an integral consideration of the case made out by the parties. It is the duty of the lower Court to look at all available authorities on the issue in order to arrive at a just decision. See USIOBAIFO vs. USIOBAIFO (2005) LPELR (3428) 1 at 21. In aliis verbis, the lower Court, drawing the necessary inferences from the materials before it is definitely not raising an issue suo motu; rather, it is the lower Court discharging its adjudicatory functions and due application of the law in order to arrive at the correct decision. In IKENTA BEST (NIG) LTD vs. A-G RIVERS STATE (2008) 6 NWLR (PT 1084) 612 at 642 or (2008) LPELR (1476) 1 at 28-29 Tobi, JSC stated:
“A Court can only be accused of raising an issue, matter or fact suo motu, if the issue, matter or fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact exists in the litigation. A Judge, by the nature of his adjudicatory functions, can draw inferences from stated facts in a case and by such inferences, the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. That is not correct.”
PER OGAKWU, J.C.A.

WHETHER OR NOT A JUDGE HAS THE RIGHT TO USE PARTICULAR WORDS OR PHRASES IN DETERMINING MATTERS BEFORE IT

Also in ENEKWE vs. IMB LTD (2006) LPELR (1140) 1 at 25 Tobi, JSC stated:
“A Judge has the right in our adjectival law to use particular words or phrases, which in his opinion, are germane to … facts of the case. In so far as he does that in line with the evidence before him, it will be unfair for counsel to castigate him or accuse him of raising issue suo motu.”
Furthermore, in OTU vs. ANI (2013) LPELR (21405) 1 at 31-34, Garba, JCA [now JSC] quipped:
“…it is clear that so long as the issue is derivable from the facts and evidence of the parties before the Court, the Court cannot be said to have raised it suo motu for a reason only that it used particular words or phrases not used by the parties to describe the issue.”
​See also ADEMOK CONTINENTAL LIMITED vs. OGUN STATE GOVT (2022) LPELR (56418) 1 at 11-16, SAHARA ENERGY RESOURCES LTD vs. OYEBOLA (2020) LPELR (51806) 1 at 75-79, TOWOJU vs. GOV OF KWARA STATE (2005) LPELR (5390) 1 at 38-39, CHIDI vs. CONSOLIDATED HALLMARK INSURANCE PLC (2018) LPELR (44384) 1 at 16-24, TSEGBA vs. REGD TRUSTEES OF MISSION HOUSE (2018) LPELR (44242) 1 at 51-52, FCMB vs. ACTION ALLIANCE (2018) LPELR (44445) 1 at 10-11 and FINNIH vs. IMADE (1992) 1 NWLR (PT 219) 511 at 537.
Accordingly, it is a misappreciation and misapprehension of the proper discharge by the lower Court of its duty, that the Appellant misconstrued as the lower Court raising an issue suo motu. No. The lower Court did not raise any issue suo motu. It merely discharged its duty of considering and pronouncing upon all the issues placed before it by the parties against the background of the law. Indubitably, it is not correct to contend that the lower Court raised the issue suo motu. See also SANI vs. AYE (supra) at 13-16.
PER OGAKWU, J.C.A.

WHETHER OR NOT A PARTY MUST BE A NECESSARY PARTY TO BE JOINED IN AN 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 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.”
PER OGAKWU J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): Kabba/Bunu/Ijumu Federal Constituency is in Kogi State. A member represents the said Constituency in the House of Representatives of the National Assembly. The Appellant, 1st Respondent and 4th Respondent are all members of the All Progressives Congress, the 2nd Respondent in this appeal. The 2nd Respondent conducted a primary election to elect the candidate it would sponsor for the Kabba/Bunu/Ijumu Federal Constituency at the 2023 General Elections. Among the contestants at the said primary election which was held on 27th May 2022, were the Appellant, the 1st and 4th Respondents.

​At the end of the primary election, the 4th Respondent was returned as elected to be sponsored by the 2nd Respondent for the said Federal Constituency at the upcoming 2023 General Elections. Due to reasons which differ between the parties, the 2nd Respondent was unable to submit the name of the 4th Respondent to the 3rd Respondent as its candidate for the said Kabba/Bunu/Ijumu Federal Constituency. In consequence thereof, the 4th Respondent instituted proceedings before the Federal High Court in SUIT NO. FHC/LKJ/CS/35/2022: HON. MATTHEW KOLAWOLE vs. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ANOR; seeking reliefs that having won the primary election, his name should be forwarded to the 3rd Respondent.

​While the said action was pending, the 1st Respondent herein instituted his own action before the Federal High Court in SUIT NO. FHC/LKJ/CS/37/2022: HON. OLOBATOKE SEGUN SAMUEL VS. ALL PROGRESSIVES CONGRESS (APC) & ORS. He claimed the following reliefs:
“i. A DECLARATION OF THIS HONOURABLE COURT that the 3rd Defendant, Hon. Prince Matthew Olushola Kolawole, submitted false information in the affidavit and documents submitted by him in relation to his constitutional requirements to contest the election to the seat of the Member, House of Representatives representing Kabba-Bunu/Ijumu Federal Constituency, Kogi State in the National Assembly, scheduled to hold on Saturday, 25th February, 2023.
ii. A DECLARATION OF THIS HONOURABLE COURT that the 3rd Defendant, Hon. Prince Matthew Olushola Kolawole, submitted false information to the 2nd Defendant in the affidavit and documents submitted by him in relation to his constitutional requirements to contest the 2015 and 2019 General Elections.
iii. A DECLARATION OF THIS HONOURABLE COURT that the 3rd Defendant, Hon. Prince Matthew Olushola Kolawole, having submitted false information in the affidavit and documents submitted by him in relation to his constitutional requirements to contest in the 2015, 2019 and 2023 General Elections is disqualified from contesting the election to the seat of the Member, House of Representatives representing Kabba-Bunu/Ijumu Federal Constituency, Kogi State in the National Assembly, scheduled to hold on Saturday, 25th February, 2023.
iv. A DECLARATION OF THIS HONOURABLE COURT that the Plaintiff, being the aspirant with the second highest number of valid/lawful votes and who satisfied the constitutional requirement as the winner of the All Progressives Congress Primary Election, held on 27th May, 2022 for the Kabba-Bunu/Ijumu Federal Constituency, Kogi State, is the candidate of the 1st Defendant to contest the General Election to the seat of the Member, House of Representatives representing Kabba-Bunu/Ijumu Federal Constituency, Kogi State in the National Assembly, scheduled to hold on Saturday, 25th February, 2023.
v. AN ORDER OF THIS HONOURABLE COURT directing the 1st Defendant to submit the name of the Plaintiff to the 2nd Defendant, as its candidate to contest the General Election to the seat of the Member, House of Representatives representing Kabba-Bunu/Ijumu Federal Constituency, Kogi State in the National Assembly, scheduled to hold on Saturday, 25th February, 2023.
vi. AN ORDER OF THIS HONOURABLE COURT directing the 2nd Defendant to accept and publish the name of the Plaintiff as the 1st Defendant’s candidate to contest the General Election to the seat of the Member, House of Representatives representing Kabba-Bunu/Ijumu Federal Constituency, Kogi State in the National Assembly scheduled to hold on Saturday, 25th February, 2023.
vii. AND FOR SUCH FURTHER RELIEF(S) as this Honourable Court may deem fit to make in the circumstances of this case.”

However, this appeal was spawned by the Appellant’s application to be joined as a defendant to the said 1st Respondent’s action. The application was opposed and in its ruling which was delivered on 28th July, 2022, the lower Court dismissed the application. The Appellant was dissatisfied with the decision of the lower Court and appealed against the same by Notice of Appeal filed on 2nd August 2022. The ruling of the lower Court is at pages 188-207 of the Records of Appeal, while the Notice of Appeal is at pages 208-213 of the Records of Appeal.

The Records of Appeal were compiled and transmitted and briefs of argument were filed and exchanged by the parties, save the 3rd Respondent, which did not file any brief. The learned counsel adopted and relied on their respective briefs at the hearing of the appeal.

In the Appellant’s brief which was filed on 22nd August 2022, two issues were crafted for determination, namely:
i. Whether the Court is justified by dismissing the motion of the Appellant without considering Order 9 Rule 5 of the Federal High Court Civil Procedure Rules 2019. This issue is distilled from ground 1, 2, 3.
ii. Whether the Court can suo motu raise issue of jurisdiction without allowing parties to address the issue as regards the application and thereby denied the appellant fair hearing. This issue is distilled from ground 4, 5 of the grounds of appeal”.

​The 1st Respondent filed his brief of argument on 26th August 2022 wherein he nominated two issues for determination as follows:
1. Whether from the totality of all the evidence before the trial Court, the application for joinder brought by the Appellant on the 13th day of July, 2022 is not outside the 14 days contemplated by Section 285 (9) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) pertaining to matters of this nature. (Distilled from Grounds 1, 2 and 3 of the Notice of Appeal).
2. Whether the Learned Trial Judge was not right when he held that the Appellant’s motion for joinder was statute barred. (Distilled from Grounds 4 and 5 of the Notice of Appeal).

The brief of the 2nd Respondent was filed on 30th August 2022 but deemed as properly filed on 2nd September 2022. The 2nd Respondent adopted the issues formulated by the Appellant. It also raised a Notice of Preliminary Objection which it withdrew at the hearing and the same was consequently struck out.

​The 4th Respondent distilled a sole issue for determination in his brief of argument which was filed on 31st August 2022 but deemed as properly filed on 2nd September 2022. The said issue is:
“Whether in view of all the processes filed for and against the Appellant’s application for joinder in Suit No: FHC/LKJ/CS/37/2022, the trial Court did not rightly dismiss the said Appellant’s application for joinder for being statute barred. (Distilled from grounds 1, 2, 3, 4 & 5 of the Appellant’s Notice of Appeal)”

The Appellant filed Reply briefs to the briefs of the 1st, 2nd & 4th Respondents on 1st September 2022. The said Reply Briefs were deemed as properly filed on 2nd September 2022.

The 3rd Respondent did not file any brief of argument and was also not represented at the hearing.
I will presently review the submissions of learned counsel based on the issues they distilled and thereafter resolve the appeal ensemble.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that the lower Court refused to be bound or be persuaded by the stipulations of Order 9 Rules 5 of the Federal High Court (Civil Procedure) Rules, 2019 and proceeded outside the said stipulation to hold that the Appellant’s motion for joinder is statue barred. It was stated that the Appellant was a candidate at the primary election and had sent a Petition to the 2nd Respondent’s Appeal Panel about the conduct of the primary; which Petition was yet to be disposed of before the 1st Respondent’s action which would frustrate and overreach the said Petition. It was asserted 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 the parties.

It was maintained that the lower Court was to decide the issue of joinder on the merits, based on whether the Appellant was a necessary party from the materials and not to go to town to hold that the application for joinder was statute barred. The lower Court, it was opined, is not supposed to decide the substantive case at the interlocutory stage. It was contended that the lower Court acted contrary to the decisions 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 posited that it was admitted that the Appellant was a candidate at the primary election as a result of 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, since the Appellant was interested in the reliefs sought in the 1st Respondent’s action. The case of AZUBUIKE & ORS [sic] (2014) LPELR 22258 SC was referred to.

The Appellant’s argument on his second issue is that the question of the provision of Section 285 (9) of the 1999 Constitution was not the live issue in the application for joinder and was a question to be decided at the substantive stage of the proceedings since an application for joinder is different from filing a fresh action. The issue of Section 285 (9) of the Constitution was said to be a matter of fact and law and cannot be treated as a preliminary objection to a motion for joinder. It was contended that the lower Court did not allow the Appellant the opportunity to address the Court on the issue of Section 285 (9), which was in violation of his right to fair hearing.

​It was asserted that a motion for joinder of parties to an action is not placed on statutory limitation, since a party can be joined at any stage of the proceeding. It was further submitted that the failure by the lower Court to consider the application on the merit occasioned a grave miscarriage of justice as the lower Court 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 is the Appellant’s further contention that the lower Court descended into the arena and was wrong in resolving the application on the issue it raised suo motu without hearing the parties vide STIRLING CIVIL ENGINEERING (NIG) LTD vs. YAHAYA (2005) LPELR-3118 (SC) at 32-33. It was conclusively maintained that it is necessary to join the Appellant as a party so that his right to fair hearing will not be breached since 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.

SUBMISSIONS OF THE 1ST RESPONDENT’S COUNSEL
The 1st Respondent’s submission is that the lower Court was right when it dismissed the Appellant’s motion for joinder on the grounds that the fourteen (14) day period prescribed by Section 285 (9) of the 1999 Constitution for an aggrieved party to approach the Federal High Court and dispute the conduct of the political party’s primary election had elapsed. It was maintained that the Appellant’s motion for joinder was statute barred, having been filed on 13th July 2022, when the primary election he wanted to be joined to litigate over was held on 27th May 2022. It was opined that where a statute provides for the way, mode or manner in which a thing is to be done, any other way or manner renders the action a nullity and void. The case of MATO vs. HEMBER (2018) 5 NWLR (PT 1612) 295 was cited in support.

The 1st Respondent maintained that statute barred actions are not justiciable as they are dead forever and that a motion for joinder cannot be used to resuscitate a statute barred action. The cases of WALI vs. APC (2020) 16 NWLR (PT 1749) 82, C.S. MBHCo vs. EMESPO J. CONT. LTD (2002) 3 NWLR (PT 753) 205 at 214-215, and P. N. UDOH TRADING CO. LTD vs. ABERE (2001) 11 NWLR (PT 723) 114 at 130 and 136 were referred to.

​It is the further contention of the 1st Respondent that the Appellant is not correct in his submission that the lower Court raised an issue suo motu without hearing the parties. It was asserted that parties were given a hearing, but that in any event, a Court has the power to raise an issue of law or jurisdiction suo motu and decide the same without hearing the parties. It was stated even where a Court raises an issue suo motu without hearing the parties, the decision would not necessarily be reversed unless it has been shown that the failure occasioned a miscarriage of justice vide EFFIOM vs. C.R.S.I.E.C. (2010) 14 NWLR (PT 1213) 106. It was conclusively submitted that the dismissal of the Appellant’s motion for joinder did not occasion a miscarriage of justice since the Appellant, prima facie, had no legal right to ventilate in the suit.

SUBMISSIONS OF THE 2ND RESPONDENT’S COUNSEL
The 2nd Respondent submits that for a party to be joined as a defendant in an action pursuant to Order 9 Rule 5 of the Federal High Court (Civil Procedure) Rules, 2019, the two conditions to exist are that the applicant must show the allegation of existence of right to any relief against him or in the alternative that the question before the Court cannot be effectively resolved without him. It was submitted that the Appellant did not show the existence of any of the said conditions in order for him to be joined as a defendant in the action. The case of APC vs. UDUJI (2020) 2 NWLR (PT 1744) 571 was referred to on the questions a Court must ask itself before it can join a party in a suit; which questions or conditions the Appellant did not meet.

​It was asserted that the Appellant’s complaint being that the primary election was “abysmal”, was a separate cause of action which accrued when the result of the primary election was announced, which cause of action the Appellant ought to pursue, and not seek to be joined to the 1st Respondent’s action which seeks to enforce his right as the person who recorded the second highest number of valid votes at the primary election. The case of GBENGA vs. APC (2020) 14 NWLR (PT 1744) 248 at 274 was called in aid for the contention that the best place for the ultimate legal redress in pre-election matters is the law Court.

On the second issue, the 2nd Respondent submits that the constitutional provisions of fair hearing are as entrenched in the common law concept of the twin pillars of natural justice and that the burden of proof is on the person who alleges a breach of fair hearing vide B. C. C. LTD vs. IMANI & SONS LTD/SHELL TRUSTEES LTD (2007) ALL FWLR (PT 348) 806 at 815. It was further stated that the Appellant’s right to fair hearing was not breached as the denial or breach of fair hearing lies in the procedure employed or used in conducting proceedings and not in the correctness or otherwise of the decision or outcome 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 referred to. The 2nd Respondent conclusively asserted that the lower Court did not pre-empt the Appellant’s case, but only ruled on the application for joinder based on the processes filed. 

SUBMISSIONS OF THE 4TH RESPONDENT’S COUNSEL
The 4th Respondent submits that from the processes filed, the lower Court was right in dismissing the Appellant’s application for being statute barred and in contravention of Section 285 (9) of the 1999 Constitution. It was posited that the main focus of the Appellant’s application for joinder is to discredit the entire primary election that was held on 27th May 2022 on the basis that the primary was “abysmal” and flawed with irregularities. It was therefore submitted that the 1st Respondent’s action seeking the disqualification of the 4th Respondent cannot be the appropriate venue for the Appellant to challenge the validity or otherwise of the primary election, as the option available to him was to file a separate action to ventilate his grievance. The said option, it was asserted, had further been caught by the statute of limitation since the Appellant had only fourteen (14) days from 27th May 2022, the date of the primary election, to complain about the conduct of the primary election; therefore the application to join the 1st Respondent’s suit in order to challenge the primary election was statute barred.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Referring to Section 285 (9) of the 1999 Constitution, it was submitted that where a law prescribes the mode of doing something, anything done contrary to the prescribed mode will be null and void vide KAMBA vs. BAWA (2005) 4 NWLR (PT 914) 43 [sic] pp 437-438 and AMAECHI vs. INEC (2008) 5 NWLR (PT 1080) 227 at 318. It was opined that matters which are statute barred are non-justiciable and that the Courts lack the jurisdiction to entertain them. It was further submitted that an application for joinder must be made within the period of limitation since a cause of action that is statute-barred cannot be resuscitated by a joinder. The cases of HASSAN vs. ALIYU (2010) LPELR-1357 (SC) at 86-87, IGE vs. FARINDE (1994) 7 NWLR (PT 354) 42 at 50, MALLAM vs. MARIGA (1991) 5 NWLR (PT 189) 114 at 118, UKU vs. OKUMAGBA (1974) 3 SC 35 and OJO vs. AWE (1962) WRNLR 254 were relied upon.

​It is the further submission of the 4th Respondent that the Appellant did not satisfy the conditions spelt out in Order 9 Rule 15 of the Federal High Court (Civil Procedure) Rules, 2019, in order for the lower Court to exercise discretion in his favour by joining him as a party pursuant to Order 9 Rule 5. It was asserted that the Appellant did not establish that he was a necessary party in whose absence the case cannot be dispensed with sufficiently, especially when no relief was sought or complaint made against the Appellant by the 1st Respondent in the action. The 4th Respondent further contends that the issue of jurisdiction was raised by the 1st and 4th Respondents in their written addresses and that the Appellant had the opportunity of replying to the issue and so cannot wrongly accuse the lower Court of raising an issue of jurisdiction and not allowing the parties to address on it. It was conclusively submitted that, in any event, the law permits a Court to raise an issue of jurisdiction suo motu and resolve the same. The case of EFFIOM vs. CRSIEC (2010) 14 NWLR (PT 1213) 106 was called in aid.

APPELLANT’S REPLY ON LAW
By Order 19 Rule 5 of the Court of Appeal Rules, 2021, the purpose of a reply brief is, inter alia, to deal with all new points raised in the Respondent’s brief. The Appellant’s Reply Briefs have not conformed with this provision as the submissions made therein are largely a re-argument of the points already taken in the Appellant’s Brief. It is not proper to use a reply brief to extend the scope of argument and submissions in the Appellant’s brief. See YANATY PETROCHEMICAL LTD vs. EFCC (2017) LPELR (43473) 1 at 27-28, ABDULLAHI vs. MILITARY ADMINISTRATOR (2009) LPELR (27) 1 at 13 and ECOBANK NIGERIA LTD vs. HONEYWELL FLOUR MILLS PLC (2018) LPELR (45124) 1 at 9-11. The reiteration of a submission already made in the Appellant’s Brief in a Reply Brief will not improve the quality of the argument or make it acceptable, if it were ordinarily unacceptable. FSB INTERNATIONAL BANK vs. IMANO NIG LTD (2000) 7 SCNJ 65 at 70, MAGIT vs. UNIVERSITY OF AGRICULTURE, MAKURDI (2005) LPELR (1916) 1 at 13 and VODACOM BUSINESS (NIG) LTD vs. FIRS (2019) LPELR (47865) 1 at 2-3. Accordingly, bearing the function of a reply brief in mind, I will only refer to the submissions in the Reply Briefs where it consists of a response to a new issue or argument in the 1st, 2nd and 4th Respondents’ Briefs.

​It is the Appellant’s contention that the pursuit of the internal remedial mechanism in the Guidelines of the 2nd Respondent meant that the stipulations of Section 285 (9) of the Constitution have not been activated since the internal remedial mechanism must be exhausted before approaching the Court. The case of ORAKUL RESOURCES LTD vs. NCC (2022) 6 NWLR (PT 1827) 552 was referred to.

It was further contended that in so far as the 1st Respondent’s substantive action was not statute barred, the application for joinder to the action cannot be statue barred. It was opined that the stipulations of Section 285 (9) of the Constitution can only be invoked in the substantive case and not at the interlocutory stage of an application for joinder.

RESOLUTION
The brass tacks of this matter depicts facts that are simple and straightforward. The 4th Respondent was returned as the winner of the primary election conducted by the 2nd Respondent to elect its candidate for the Kabba/Bunu/Ijumu Federal Constituency. However, the name of the 4th Respondent could not be submitted for different reasons advanced by the parties. Consequent upon this, the 1st Respondent instituted the proceedings before the lower Court, claiming the reliefs which I have already set out in this judgment. The Appellant applied to be joined as a defendant in the action, in order to contend that there was no valid primary election.

In opposing the application, the 1st and 4th Respondents raised the issue that the Court had no jurisdiction to entertain the application on the ground that the application was caught by the provisions of Section 285 (9) of the 1999 Constitution which stipulates for a limitation period of fourteen (14) days for the commencement of a pre-election matter.

The decision of the lower Court on the application was a dismissal of the application for being statute barred. The ratio decidendi of the lower Court puts this appeal in a very narrow compass. I will set out verbatim ac literatim, the decision of the lower Court on the application. Hear the lower Court at pages 206-207 of the Records:
“RESOLUTION OF ISSUES RAISED
“The Court’s jurisdiction to entertain this application has been raised by the Plaintiff/Respondent Counsel and the 3rd Defendant’s Counsel herein citing breach of Section 285(9) of the 1999 Constitution of Nigeria (as amended), which allows for 14 days for the commencement of ‘Pre-Election Matter, after the conduct of the 1st Defendant’s primary election, it will be prudent to inquire into it and resolve same at the earliest before a wholesome resolution of the issues raised herein.
From paragraph 4 of the Applicant supporting affidavit to its Motion for Joinder, the Applicant deposed to the fact that the primary election held on the 27th of May, 2022.
The Applicant herein Motion for Joinder was filed on the 13th day of July, 2022, which is outside the 14 days as prescribed by Section 285(9) of the Constitution of Federal Republic of Nigeria, 1999, as amended; thus statute barred.
Where a party’s action is statute-barred, as in the instant application for joinder of the Applicant to this suit, the following consequences will follow:
(a) The Applicant will lose his right of the said application.
(b) The Applicant will lose the right of enforcement.
(c) The Applicant will also irretrievably lose the right to judicial relief.
(d) Applicant will have an empty cause of action, which no Court will assist to enforce.
See the case of Daudu v. University of Agriculture Makurdi & Ors. (2002) 17 NWLR (Pt. 796) at 384 – 385 paragraphs H – D.
The claim or relief of the Applicant has been lost by failure to seek redress within 14 days. The Applicant Motion on Notice dated and filed on the 13/7/2022 is hereby dismiss [sic] for being incompetent, and statute barred.”

So, the ratio decidendi of the lower Court is that the application is statute-barred. Facts are the fountainhead of the law. This is so because it is the facts as presented that will inform the legal principle that will apply to the said set of facts. In this wise, the grounds on which the Appellant predicated his application for joinder as compiled on pages 92-93 of the Records of Appeal are as follows:
“GROUNDS FOR THE APPLICATION
1. The Applicant is a member of the 1st defendant party and an aspirant who participated in the abysmal primary election held on the 27th of May 2022, to represent the Kabba/Bunu/Ijumu Federal Constituency.
2. The Applicant is one of the 1st defendant Aspirants who contested in the abysmal primary election to be candidate of the 1st defendant in the upcoming general election to represent the Kabba/Bunu/Ijumu Federal Constituency.
3. That the Applicant like other aspirant complained about the inadequacies of the primary election and thereafter petitioned to the appeal committee of the 1st defendant party.
4. That the plaintiff and the 2nd defendant did not win the Primary election as the election was a charade.
5. That the Applicant and others petitioned the Appeal panel of the 1st respondent committee on the Abysmal conduct of primary elections for the Kabba/Bunu Ijumu Federal house of representative and is still awaiting their response.
6. That on that basis none of the candidates’ name was sent to the 2nd Defendant.
7. That this case cannot be decided effectively if the applicant is not joined in this matter to enable the Courts to have all the facts before it and to decided [sic] once and for all in this case.
8. That the applicant is a necessary party for the just determination of this case.
9. That the Court can su [sic] motu join the 4th defendant for being an interested and necessary party in this suit.
10. That the Court will be misled by the plaintiff if the applicant is not joined in this suit.”

​The above grounds disclose that the primary election was conducted on the 27th day of May 2022 and that the purpose for which the Appellant desired to be joined to the action is for him to contest and establish that the primary election was a “charade” and an “abysmal conduct of primary elections”. So the entire purpose of the application for joinder was to contest the validity of the primary election. The application for joinder was filed on 13th July 2022, about forty-eight (48) days after the primary election of 27th May 2022. The paramount question is whether the Appellant could at that stage be heard to challenge the conduct of the primary election as a charade if he is joined to the action. This is against the background of the provision of Section 285 (9) of the 1999 Constitution which stipulates that a pre-election matter shall be filed not later than fourteen (14) days from the date of the event, decision or action complained of. See NWOKO vs. WAOBOSHI (2019) LPELR (49202) 1 at 4-5, ONI vs. FAYEMI (2019) LPELR (49299) 1 at 26-34 and USANI vs. INEC (2019) LPELR (48777) 1 at 46-47.
​Technically, even though an application for joinder is not the filing of a pre-election matter, but in considering an application for joinder, the question which the person intending to be joined intends to ventilate has to be one which is within the jurisdiction of the Court to entertain. In circumstances, where the Court will not have jurisdiction to entertain such an issue then it will be inutile to grant the application for joinder. In the peculiar circumstances of this matter, it cannot be confuted that fourteen (14) days from the date of primary election which the Appellant considers “abysmal” and a “charade” has long elapsed; such that any such challenge has become statute-barred. In C.S. MBHCo. vs. EMESPO J. CONT. LTD (supra), this Court, per Galadima, JCA (as he then was) held as follows at pages 214-215:
“It is well settled law that an application for the joinder of a party to an action must be made within and not outside the period of limitation. Where a cause of action is statute-barred or has abated, it cannot be resuscitated by a joinder. See Benson Ige v. Babajide Farinde (1994) 7 NWLR (Pt. 354) p. 42 at 50; Isa Mallam v. Wakili Mairiga (1991) 5 NWLR (Pt. 189) page 114 at 118; Uku v. Okumagba (1974) 3 SC 35; Ojo v. Awe (1962) WRNLR 254.
In the case of Oduola v. Ogunjobi (1986) 2 NWLR (Pt. 23) 508 at 509, Ademola, J.C.A., considering the issue raised in the appeal as to whether the joinder of applicants would not deprive them of the defence of limitations under the limitation law of Lagos State Cap. 70 referred to the English case of Marbro v. Eagle, Star and British Dominions Ins. Co. Ltd. (1932) 1 K.B. 485 where Scrutton L.J. said:
‘In my experience, the Court has always refused to allow a party or a cause of action to be added where, if it were allowed, the defence of the Statute of Limitations would be defeated. The Court has never treated it as just to deprive a defendant of a legal defence. If the facts show either that the particular plaintiff or the new cause of action sought to be added are barred, I am unable to understand how it is possible for the Court to disregard the statute.’
The question of period of limitation of actions is not to be seen as a matter of practice and procedure. It is rather a matter of law as contained in the relevant statutes. Once an action is caught by statute, the Court has no jurisdiction to entertain the matter. There is a feature in the case which prevents the Court from exercising its jurisdiction because the condition precedent for the exercise of that jurisdiction is not yet fulfilled. See Raleigh Ind. (Nig.) Ltd. v. Nwaiwu (1994) 4 NWLR (Pt. 341) 760, Madukolu v. Nkemdilim (1962) 2 SCNLR 341 and Savannah Bank (Nig.) Ltd. v. Pan Atlantic Shipping and Transport Agencies Ltd. (1987) 1 NWLR (Pt. 49) p. 212.”
See also YAHAYA vs. UDI (2019) LPELR (47426) 1 at 32-35.
I am cognisant of the Appellant’s contention that he lodged a Petition against the conduct of the primary election with the Appeal Panel of the 2nd Respondent and that the Petition was still pending. Even if that is the position, the law remains trite that the pursuit of the internal dispute resolution mechanism of a political party, will not put on hold the limitation period stipulated in Section 285 (9) of the 1999 Constitution (as amended): LOKPOBIRI vs. APC (2021) 3 NWLR (PT 1764) 538 at 545. The Appellant in order to validly challenge the “charade” and “abysmal conduct of the primary election” which he alleges, must file an action in that regard within fourteen (14) days from the date of the primary election as stipulated in Section 285 (9) of the 1999 Constitution (as amended); id est, within fourteen (14) days of 27th May, 2022, irrespective of any internal dispute resolution mechanism that he may be pursuing. This was not done.
In the circumstances, it would have been contrary to the legal prescription to have joined the Appellant to the action in order for him to ventilate an issue that is statute-barred.

​The Appellant further argued that the issue of the matter being statute barred was raised by learned counsel for the 1st Respondent viva voce and that the lower Court did not allow the Appellant to address the issue. In a seeming double speak, the Appellant further contended that the issue of limitation law and Section 285 (9) of the Constitution was raised suo motu by the lower Court and resolved without hearing the parties on the issue. On both scores, the Records of Appeal do not bear out the Appellant’s contention. By all odds, it is settled law that a Court should not raise an issue suo motu and unilaterally resolve the same without affording the parties a hearing, particularly the party that may be adversely affected by the issue raised: OSHODI vs. EYIFUNMI (2000) 13 NWLR (PT 684) 298 at 332, MOJEKWU vs. IWUCHUKWU (2004) LPELR (1903) 1 at 25, LEADERS & COMPANY LTD vs. BAMAIYI (2010) LPELR (1771) 1 at 11-12 and SANI vs. AYE (2022) LPELR (58094) 1 at 12. But did the lower Court raise the said issue suo motu?

​The 1st Respondent’s written address in opposition to the motion for joinder is at pages 116-128 of the Records. Specifically on pages 120-122 of the Records, the 1st Respondent raised the issue that the Appellant’s application was statute barred. In the same vein, the written address of the 4th Respondent in opposition to the Appellant’s motion for joinder is at pages 135-144 of the Records. The 4th Respondent raised the issue of the application being statute barred in his written address at page 142 of the Records. The matter does not end there. The Appellant filed a written address in support of the further affidavits he filed in response to the 1st and 4th Respondents’ counter affidavits. In the said written addresses which are at pages 161-168 of the Records, and 173-177 of the Records, the Appellant had the opportunity to respond to the issue of the application being statute barred. It is his funeral if he failed to respond!

​Furthermore, at the hearing of the application, at the lower Court (see pages 182-185 of the Records); the issue of the application being statute barred was raised by 1st Respondent’s counsel at page 183 of the Records. The Appellant’s counsel replied on points of law to the submissions of learned counsel for the Respondents at pages 184-185 of the Records, but he deliberately did not address the issue. So, it is not correct that the lower Court raised the issue of limitation of action suo motu. It was raised by the parties in the processes they filed. The law is settled beyond peradventure that a Court is bound to make a pronouncement on the disparate contentions placed by the parties before it and their effect on the matter. See EJOWHOMU vs. EDOK-ETER MANDILAS LTD (1986) 9 SC 41 at 102-103, AKINTOLA vs. SOLANO (1986) LPELR (360) 1, MARINE MANAGEMENT ASSOCIATES INC vs. NMA (2012) LPELR (20618) 1 at 27, ADEBAYO vs. A-G OGUN STATE (2008) LPELR (80) 1 at 17 and NKUMA vs. ODILI (2006) LPELR (2047) 1 at 17. In the circumstances, the lower Court making a pronouncement on the legal effect of the submissions made before it, is definitely not raising an issue suo motu; rather, it is an integral consideration of the case made out by the parties. It is the duty of the lower Court to look at all available authorities on the issue in order to arrive at a just decision. See USIOBAIFO vs. USIOBAIFO (2005) LPELR (3428) 1 at 21. In aliis verbis, the lower Court, drawing the necessary inferences from the materials before it is definitely not raising an issue suo motu; rather, it is the lower Court discharging its adjudicatory functions and due application of the law in order to arrive at the correct decision. In IKENTA BEST (NIG) LTD vs. A-G RIVERS STATE (2008) 6 NWLR (PT 1084) 612 at 642 or (2008) LPELR (1476) 1 at 28-29 Tobi, JSC stated:
“A Court can only be accused of raising an issue, matter or fact suo motu, if the issue, matter or fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact exists in the litigation. A Judge, by the nature of his adjudicatory functions, can draw inferences from stated facts in a case and by such inferences, the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. That is not correct.”
Also in ENEKWE vs. IMB LTD (2006) LPELR (1140) 1 at 25 Tobi, JSC stated:
“A Judge has the right in our adjectival law to use particular words or phrases, which in his opinion, are germane to … facts of the case. In so far as he does that in line with the evidence before him, it will be unfair for counsel to castigate him or accuse him of raising issue suo motu.”
Furthermore, in OTU vs. ANI (2013) LPELR (21405) 1 at 31-34, Garba, JCA [now JSC] quipped:
“…it is clear that so long as the issue is derivable from the facts and evidence of the parties before the Court, the Court cannot be said to have raised it suo motu for a reason only that it used particular words or phrases not used by the parties to describe the issue.”
​See also ADEMOK CONTINENTAL LIMITED vs. OGUN STATE GOVT (2022) LPELR (56418) 1 at 11-16, SAHARA ENERGY RESOURCES LTD vs. OYEBOLA (2020) LPELR (51806) 1 at 75-79, TOWOJU vs. GOV OF KWARA STATE (2005) LPELR (5390) 1 at 38-39, CHIDI vs. CONSOLIDATED HALLMARK INSURANCE PLC (2018) LPELR (44384) 1 at 16-24, TSEGBA vs. REGD TRUSTEES OF MISSION HOUSE (2018) LPELR (44242) 1 at 51-52, FCMB vs. ACTION ALLIANCE (2018) LPELR (44445) 1 at 10-11 and FINNIH vs. IMADE (1992) 1 NWLR (PT 219) 511 at 537.
Accordingly, it is a misappreciation and misapprehension of the proper discharge by the lower Court of its duty, that the Appellant misconstrued as the lower Court raising an issue suo motu. No. The lower Court did not raise any issue suo motu. It merely discharged its duty of considering and pronouncing upon all the issues placed before it by the parties against the background of the law. Indubitably, it is not correct to contend that the lower Court raised the issue suo motu. See also SANI vs. AYE (supra) at 13-16.

​Howbeit, the law in its wisdom recognizes that there may be situations where all the persons who ought to be sued in an action are not sued. In this wise, the law makes provisions for such persons to be joined as defendants to the action, where appropriate.

The provision of Order 9 Rule 5 of the Federal High Court (Civil Procedure) Rules, 2019 is relevant in this context. It stipulates:
“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)
​By the above provision, the joinder of a person as a defendant is not granted as a matter of course. The grant of the joinder is not inevitable upon the application being filed. The grant of the order is not a mechanical process, like a locomotive in the process of locomotion. The person to be joined as defendant has to be a person against whom the right to any relief is alleged to exist. I have already set out the reliefs claimed by the 1st Respondent; I have further analysed the basis on which the Appellant desires to be joined as a defendant. In the context of the circumstances of the action, I am unable to see any relief that can be alleged to exist against the Appellant 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 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 given due consideration to these questions in the circumstances of this matter and I am unable to give an affirmative answer to any of them in order for the Appellant to be joined as a party in the action.

​An appellate Court is concerned with whether the decision appealed against is the correct decision and not whether the reasons given for the decision are correct. See POATSON GRAPHICS ARTS TRADE LTD vs. NDIC (2017) LPELR (42567) 1 at 36, NDAYAKO vs. DANTORO (2004) 13 NWLR (PT 889) 189 at 220 and OLUSANYA vs. UBA PLC (2017) LPELR (42348) 1 at 27. So, if the decision of the lower Court dismissing the application for joinder is the correct decision, then it is immaterial if the reason for the decision is that the application is statute-barred. See DAIRO vs. UBN PLC (2007) 16 NWLR (PT 1059) 99 at 161, ASONIBARE vs. ADEBAYO (2021) LPELR (55593) 1 at 57-58 and SANI vs. AYE (supra) at 16-17.

As I have analysed and demonstrated, the 1st Respondent’s cause of action and the reliefs claimed can be effectually and completely adjudicated upon and all questions involved in the action settled without the Appellant being made a party. The lower Court consequently arrived at the correct decision when it dismissed the Appellant’s application for joinder as a defendant to the 1st Respondent’s action since the Appellant was neither a proper, desirable nor necessary party.

​It is now the appropriate time for buoyage for this judgment. The conflating of the foregoing is that this appeal is devoid of merit. It therefore fails and it is hereby dismissed. The decision of the lower Court delivered on 28th July 2022 is accordingly affirmed. There shall be costs of N100,000.00 in favour of each of the 1st, 2nd and 4th 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 accordingly dismissed.

I abide by the orders of my lord in the lead judgment including order as to costs.

FOLASADE AYODEJI OJO, J.C.A.: I have had the benefit of reading in advance, the draft of the leading judgment just delivered by my learned brother UGOCHUKWU ANTHONY OGAKWU, JCA. I am in full agreement with his reasoning and the conclusion reached therein.

In its ruling, the subject of this appeal, the lower Court found that the motion for joinder was filed outside the time provided for filing a pre-election matter. Consequently, that Court dismissed the Appellant’s application for joinder on the ground that it was incompetent and statute barred. Learned Counsel to the Appellant has however argued that the learned trial Judge misconceived the law when he so held.

​The whole connotation of “Limitation” of action in respect of a given subject matter postulates a statutory period after which a lawsuit cannot be brought in Court. It usually comes about by legislation [Statutes] and may also be by written agreements between contracting parties. Statutes of Limitation bar claims after a specified period has elapsed. The purpose of such Statutes is to ensure diligent prosecution of known claims, thereby providing finality and predictability in legal matters while evidence is available and fresh. An action instituted after the expiration of the prescribed period is said to be statute-barred. The effect of a Limitation Law is that legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period and a Court is divested of its jurisdiction in the matter. See AMADI VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2013) 4 NWLR (PT. 1345) 595: DEMOCRATIC PARTY VS. CONGRESS FOR PROGRESSIVE CHANGE (2011) 17 NWLR (PT. 1277)485.

In this case, parties are on common ground that the primary election conducted to nominate 2nd Respondent’s candidate to contest the seat to Kabba/Bunu/Ijumu Federal Constituency in the general election scheduled to hold in 2023 was conducted on 27th of May, 2022. Section 285(9) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides as follows:
“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.”
By its operation, Section 285(9) of the Constitution (supra) is a limitation Law. By the provision, a person aggrieved by a political party’s conduct of its primary election shall file a challenging suit within 14 days from the date the result of the party’s primary election was declared. See MAKU VS. SULE (2022) 3 NWLR (PT. 1817) 231; LOKPOBIRI VS. ALL PROGRESSIVES CONGRESS (2021) 3 NWLR (PT. 1764) 538; BELLO VS. YUSUF (2019) 15 NWLR (PT. 1695) 250; ILIYASU VS. RIJAU (2019) 16 NWLR (PT. 1697) 1.
It follows therefore that time within which the Appellant may ventilate his grievance against the conduct of the primary election commenced on 28th of May, 2022 and lapsed on or about 10th of June, 2022. The cause of action relied on as the ground for the joinder had been caught by the limitation law. It had become statute barred and I so hold.

Learned Counsel to the Appellant has however argued that there is a pending appeal against the conduct of the primary election pending before an appeal panel set up by the 2nd Respondent. According to him, this makes the application filed competent. This argument of Counsel is however of no moment as the law is trite that an appeal to a political party dispute resolution panel does not stay the hand of the provision of Section 285(9) of the Constitution as to when time starts to run. See the case of LOKPOBIRI VS. ALL PROGRESSIVES CONGRESS (2021) 3 NWLR (PT. 1764) 538 AT PAGE 545, PARAGRAPH B, where the Supreme Court, per Okoro, JSC held as follows:
“Let me state clearly that an appeal to a political party dispute resolution panel does not stay the hand of the provision of Section 285(9) of the Constitution as to when time starts to run.”
Furthermore, in IGE VS. FARINDE (1994) 7 NWLR (PT. 354) 42 AT 72, PARAGRAPH C, the Supreme Court, per Ogwuegbu, JSC held as follows:
“If a cause of action is statute barred or has abated, a joinder cannot resuscitate it. See Ojo & Ors. v. Gabriel Awe & or. (1962) NWLR 254.”
​The complaint which formed the ground upon which the Appellant brought his application was no longer a live issue at the time the application was filed. The Appellant’s motion for joinder cannot be used to resuscitate a cause of action which is already statute barred. See OFONGO VS. ALL PROGRESSIVES CONGRESS (2022) 4 NWLR (PT. 1821) 543 AT 581, PARAGRAPH A; WALI VS. ALL PROGRESSIVES CONGRESS (2020) 16 NWLR (PT. 1749) 82; GARBA VS. ALL PROGRESSIVES CONGRESS (2020) 2 NWLR (PT. 1708) 345; BIEM VS. SOCIAL DEMOCRATIC PARTY (2019) 12 NWLR (PT. 1687) 377.

A summary of all of the above is that the lower Court lacked the requisite competence to adjudicate over the grievance which the Appellant sought to ventilate if he had been joined to the suit filed by the 1st Respondent. I therefore completely agree with my learned brother when he held that in circumstances, where the Court will not have jurisdiction to entertain such an issue then it will be futile to grant the application for joinder. The lower Court was therefore right when it refused the Appellant’s application.

​It is for the above and the fuller reasons given in the lead judgment that I also dismiss this appeal and affirm the decision of the lower Court. I abide by all the consequential orders made in the leading judgment including that as to costs.

Appearances:

Dr. Adekunle Oladapo Otitoju, with him, Isaac E. Ekpa, Esq. and J. O. Olabode, Esq. For Appellant(s)

Ayotunde Ogunleye, Esq. with him, Utibeabasi Atan, Esq. and Ms. Chinyere Okonna, – for 1st Respondent

Funsho Boluromi, Esq. – for 2nd Respondent

S. S. Adukke, Esq. – for 4th Respondent

3rd Respondent duly served but absent and not represented by Counsel For Respondent(s)