DR. ANDY UBA v. (PRINCE) HON. NICHOLAS UKACHUKWU & ANOR
(2013)LCN/6247(CA)
In The Court of Appeal of Nigeria
On Friday, the 31st day of May, 2013
CA/OW/180A/2012
JUSTICES
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
Between
DR. ANDY UBA
(sued for himself and on behalf of the other persons who lay claim to their names having been purportedly submitted by a factional leader of the PDP, Anambra State Branch, Chief Benji Udeozor, 1st Respondent through a letter signed by the same Chief Benji Udeozor and dated 13/1/2011 but actually received by INEC on 17/2/2011 (joined by order or court of 1/2/12) – Appellant(s)
AND
1. (PRINCE) HON. NICHOLAS UKACHUKWU
(for themselves and on behalf of the other Aspirants for the position of Senators and members, Federal House of Representatives for Anambra State on the platform of the Peoples Democratic Party (PDP) and who were successful in the primaries conducted by Senator Waku and the 7/1/2011 and 8/1/2011 and thus became candidates of the party in the general election stated for April 2011 for positions of Senate and Federal House of Representatives to represent Anambra State in Ike same and whose names are clearly set out in the verifying affidavit in support of this application and in the grounds)
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)
RATIO
WHETHER OR NOT PARTIES ARE BOUND BY THEIR PLEADINGS
Is it no more the law that parties are bound by their pleadings and by extension, the reliefs they seek from the court? Without much ado, I state clearly that parties are bound by their pleadings and reliefs they seek from the court. It is trite that the purpose of pleading is to give the other side at the earliest opportunity, the case the other side is to meet in court. Nobody is allowed to change the size and position of the goal post after the game has started except with the permission of the referee and notice on the other party. SEE AMERICAN CYANAMID COMPANY vs. VITALITY PHARMACETICALS LTD. (1991) 2 NWLR (Pt. 171) 15; OSHO vs. FOREIGN FINACIAL CORPORATION & ANOR. (1991) 4 NWLR (Pt.184) 157; SYLVESTER EZEKPELECHI UKAEGBU & ORS V. DURU ONONANWA UDOJI & ORS. (1991) 6 NWLR (Pt.196) 127, (1991) 7 SCNJ 244. PER OKORO, J.C.A.
WHETHER OR NOT A PARTY WHO COULD NOT BRING HIMSELF WITHIN THE CONTEMPLATION OF THE EXTANT CONSTITUTIONAL AND STATUTORY PROVISIONS IN NIGERIA IN PURSUING EITHER A PRE-ELECTION ISSUE OR POST-ELECTION MATTER WOULD HAVE LOST HIS RIGHT OF ACTION
A party who therefore could not bring himself within the contemplation of the extant constitutional and statutory provisions in Nigeria in pursuing either a pre-election issue or post-election matter would have lost his right of action even though he may have had a cause of action, genuine or otherwise. This was given judicial stamp of authority both by the Court of Appeal and the Supreme Court in the case of HASSAN vs. ALIYU (2010) 17 NWLR (pt. 1223) 547 at 589-590. Incidentally, I wrote the lead judgment in this case at the Court of Appeal which was gleefully affirmed by the apex court. I am therefore at home with what is going on here. See also KOLAWOLE vs. FOLUSHO (2009) 8 NWLR (Pt.1143) 338 at 396; UDEAGHA vs. OMEAGARA (2010) 11 NWLR (Pt.1204) 168; OLOFU vs. ITODO (2010) 18 NWLR (Pt.1225) 545 at 577-578; ODEDO vs. INEC (2008) 17 NWLR (Pt.1117) 554 at 635 paras B-D. PER OKORO, J.C.A.
RIGHT TO SUE IN A REPRESENTATIVE ACTION
It is trite that in a representative action, the interest of the representative is fused with that of the group he represents else, he cannot represent them. In other words, whether they sue as plaintiff or are sued as defendants (as in this case) they must have a common interest in one cause or matter. If not, the plaintiff cannot sue or be sued on their behalf. They rise and fall together. See BUSARI AYINDE & ORS vs. ADEDOKUN ALHAJI & ORS. (1988) 1 SC. 106; ORAGBALAIDE vs. ONITJU (1962) 1 ALL NLR 32; J. W. AMU vs. J. B. ALANE & ANOR. (1974) 10 SC. 163. PER OKORO, J.C.A.
JOHN INYANG OKORO, J.C.A (Delivering the Leading Judgment): This is one of the many interlocutory appeals which have in recent times clogged our cause lists. It emanates from the decision of the Federal High Court, sitting at Umuahia in Suit No. PHC/UM/CS/UM/92/2012 delivered on 1st February, 2012 wherein the learned trial judge M. G. Umar, J, allowed the amendment of the originating motion on notice for Judicial Review and also joined the appellant herein as a respondent in the substantive suit. Being dissatisfied with the said Ruling, the appellant sought and obtained the leave of this Court to Appeal against the said decision. The said leave and extension of time to appeal was granted on the 5th day of July, 2012 pursuant to which the appellant filed his notice and grounds of appeal on 9th July, 2012. A brief facts leading to this appeal are as follows:
The 1st respondent herein was granted an ex-parte order by the court below made on 13th January, 2011 for leave to commence an application for Judicial Review against the Independent National Electoral Commission (INEC). The original reliefs sought by the 1st respondent (as applicant) vide his motion on notice for Judicial Review dated 24th January, 2011 and filed on 17th January, 2011 and directed exclusively at INEC were as follows:
“1. A declaration of court that the respondent is bound to act on and receive the list only of candidates who actually participated in the primaries of the Peoples Democratic Party conducted by the party for the election of candidates of the party from Anambra State to represent her in the April, 2011 election to the Senate and Federal House of Representatives of the Federal Republic of Nigeria and who emerged victorious in the same and as presented by the National Executive Committee of the party and on other list.
2. A further declaration of court that it is the political party that makes its decision on who to present as its candidate in an election and not the respondent especially where the candidates had emerged democratically in a free and fair electoral process as in the present case.
3. A declaration of the court that by the extant constitution of the Peoples Democratic Party, 2009 as amended, only the National Executive Committee of the party acting through its National Chairman and Secretary can validly present the list of its candidates in an election to the respondent who is bound to receive the same as in the present case where the said National Executive Committee of the Peoples Democratic Party has presented the list containing the names of the applicant and others to the respondent.
4. An injunctive order of the court restraining the respondent from receiving or acting on any list of candidates of the Peoples Democratic Party to contest the election to the senate and Federal House of Representatives for Anambra State in the election the National Assembly slated for April, 2011 other than that containing the names of the applicants and their other colleagues otherwise called the Senator Waku List of Candidates successful in the 07/01/2011 and 08/01/2011 National Assembly Primaries, Anambra State.”
The said election alluded to by the 1st respondent in his reliefs reproduced above was held in April, 2011 wherein the appellant contested and won same under the platform of the Peoples Democratic Party. The declaration of result and certificate of Return were issued bearing the names of the appellant as the candidate who won the election. He was subsequently sworn in as Senator of the Federal Republic of Nigeria. Following the declaration of the appellant as winner, the 1st respondent filed an election petition at the Election Tribunal, Awka. The said petition was struck out as it was laced with matters sounding in pre-election realm. A subsequent appeal of the 1st respondent to the Court of Appeal, Enugu was also dismissed.
After the dismissal of his appeal by the Appeal Court, the 1st respondent on 11th October, 2011 (about 6 months after the election and about 10 months after the institution of the Judicial Review proceedings) applied for the joinder of the appellant as a party to the proceedings. The appellant was sued and/or joined “for himself and on behalf of the other persons who lay claim of their names having been purportedly submitted by a factional leader of the PDP, Anambra State Branch, Chief Benji Udeozor, to the 1st respondent through a letter signed by the same Chief Benji Udeozor and dated 13/1/2011 but actually received by INEC on 17/1/2011. In the same motion, the 1st respondent herein sought for and was granted leave to amend the original motion on notice for Judicial Review by introducing 2 additional reliefs to the original reliefs sought. The said two additional reliefs are reliefs 5 and 6 in the amended application for Judicial Review which state as follows:
“5. A further order of injunction directing the 1st respondent to regard and/or continue regarding to treat or to continue to treat and to accord forthwith all the rights/perquisites/privileges appertaining/accruing to the applicants as candidates of the Peoples Democratic Party for the Anambra South Senatorial District and other Senatorial Districts/Federal Constituencies in Anambra State in April/May 2011 general election.
6. An order of court taking away forthwith from the 3rd respondent and his associates whose names appear in the Chief Benji Udeozor list of persons already mentioned above any rights, perquisites or privileges usurped and /or presently being enjoyed by them albeit undeservedly as “candidates” of the PDP in the aforesaid April/May 2011 general elections.”
The learned trial judge in allowing the amendment and joining the appellant placed reliance on the Supreme Court case of AMAECHI vs. INEC (2008) NWLR (pt.1080) 227. As I said above, the appellant filed notice of appeal on 9th July, 2012. Thereafter, he was granted leave to amend the said Notice of Appeal. The said amended Notice is dated 1st November, 2012 and filed on 7th November, 2012. It was however deemed properly filed on 26/11/12. It is this amended Notice of Appeal which the appellant relies upon in this appeal. The appellant has however abandoned ground 4 in the Amended Notice of Appeal. Accordingly, it is hereby struck out.
In an amended brief of argument settled on behalf of the appellant by Authur Obi Okafor, SAN, leading other counsel, two issues are formulated for the determination of this appeal. They are as follows:
1. Whether it was competent for the court below to allow the amendment of the 1st respondent’s application for Judicial Review by which two additional reliefs were added to the original reliefs sought in the action.
2. Whether it was not time barred, an abuse of court process and/or incompetent to join the appellant to this suit after the holding and/or conduct of the subject election and result declared by the appropriate authority.
Also, in the 1st respondent’s amended brief filed and signed by P. I. N. Ikweto, SAN, two issues are distilled for the determination of this appeal namely:
“a. Whether the learned trial court rightly exercised the discretion judicially and judiciously to join the appellant as a party to this suit and whether the said joinder of the appellant as a party to this suit was time barred.
b. The 1st respondent adopts issue No. (1) in the Amended appellant’s brief of argument.”
In this appeal, from the facts of this case, it appears to me that the two issues as couched by the appellant are more explicit and I intend to determine this appeal based on those two issues. This is much more so as the 1st respondent has adopted the 1st issue as couched by the appellant. I notice that argument on the two issues as formulated are interwoven and inter-related. Accordingly, I shall determine the two issues together.
Referring to the two additional reliefs allowed to be part of the amendment granted by the court below, the learned Senior Counsel for the appellant submitted that by those reliefs, the 1st respondent is praying the Federal High Court to accord him all the rights, perquisites and/or privileges appertaining/accruing to him as candidate of PDP in the April/May, 2011 election. That the 1st respondent is also praying that those rights, perquisites and/or privileges being presently enjoyed by the appellant as candidate of PDP in the April/May election be removed from the said appellant and be vested on him the 1st respondent. The learned Silk further argued that there are two sides of the coin to this amendment. The first being that the 1st respondent appears to be questioning the candidature or the validity of the appellant’s nomination and sponsorship as candidate of PDP. Secondly, it could be supposed that the 1st respondent who prays for the stripping of the appellant of the rights and perquisites he enjoys as the winner of the April/May, 2011 election is invariably attacking the appellant’s return as undue. It is his argument that the first side of the coin as postulated sounds in pre-election while the second side of the coin had metamorphosed into a post-election matter.
Accordingly to learned Senior Counsel, whether it is pre-election or post-election, they are governed by the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Electoral Act, 2010 (as amended). It is his contention that an aggrieved person who wishes to pursue either a pre-election grievance or post-election issue must bring himself within the confines and contemplation of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Electoral Act, 2010 (as amended). It is his further submission that a party who could not bring himself within the contemplation of the extant constitutional and statutory provisions in Nigeria in pursuing either a pre-election issue or post-election matter would have lost his right of action even though he may have had a cause of action, relying on the case of HASSAN vs. ALIYU (2010) 17 NWLR (Pt.1223) 547 at 589-590.
In his further argument, the learned Silk for the appellant submitted that by order 9 Rule 14 (5) of the Federal High Court (Civil Procedure) Rules 2009, the introduction of the two additional reliefs against the appellant shall be deemed to have taken effect from the date the amended originating process were served on the appellant and this cannot be earlier than 1st February 2012, when the amendment was granted, about ten (10) months after the named election. It is his contention that the Relation Back Theory where an amendment relates back to the date of filing the original process, does not apply in this case because it applies in full force where the right being pursued is a Common Law Right in which there is no time bar for the agitation of the cause. Also, that the Rule does not apply because statute of Limitation has been unwittingly been introduced in the matter, referring specifically to Order 34 Rule 3, Federal High Court (Civil Procedure) Rules, 2009 which provides that an aggrieved person must bring an action for Judicial Review within 3 months of the accrual of the cause of action.
According to the learned Silk, pre-election matters are instituted before the holding of elections while the post-election matters are filed after the election and different considerations are attached to each of them. That in this case, the 1st respondent did not file any proceedings against the appellant before the election of April/May, 2011. He relies on the following cases:
KOLAWALE vs. FOLUSHO (2009) 8 NWLR (Pt.1143) 338 at 396; UDEAGHA vs. OMEGARA (2010) 11 NWLR (Pt.1204) 168; OLOFU vs. ITODO (2010) 8 NWLR (pt.1225) 545 at 577-578; HASSAN vs. ALIYU (2010) 17 NWLR (Pt.1223) 547 at 599; ODEDO vs. INEC (2003) 17 NWLR (Pt.111) 554 at 635 paras. B-D; LIFF vs. PEASELY (1980) 1 ALL ER 623 CA and UBA PLC vs. ABUDULLAHI (2003) 3 NWLR (Pt.307) 359 at 379.
The learned Senior Counsel submitted further that should this court find that the two additional reliefs sound in pre-election and that with the holding and the declaration of the result of the April/May, 2011 election, the 1st respondent had lost his right of action to enforce his pre-election grievance against the appellant, the matter should be struck out relying again on the case of ODEDO vs. INEC (supra).
On the other hand, the learned Silk argued that if this court finds that the two additional reliefs sound in post-election then it portends for the 1st respondent that he should not have presented those two additional reliefs to the Federal High Court for determination but that those reliefs ought to have been ventilated at an Election Petition Tribunal. Learned counsel then referred to Section 285 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 131 (1) of the Electoral Act, 2010 (as amended).
Learned Senior Counsel concluded on this issue that from whichever side of the coin one may wish to consider the matter, the Federal High Court had no jurisdiction or competence to have allowed the 2 additional reliefs against the appellant about 10 months after the conduct of the subject election and the declaration of the appellant as the winner thereof. He then urged this court to resolve this issue in favour of the appellant.
On the second issue, after adopting his argument on the 1st issue, he submitted that by Order 34 Rule 4 of the Federal High Court (Civil Procedure) Rules 2009, this action for Judicial Review is statute barred. That rules of court are meant to be obeyed, citing the case of ASTC vs. QUORUM CONSORTIUM LTD. (2009) 9 NWLR (Pt. 1145) page 1 at 29. He submitted also that where a statute provides a way by which a thing has to be done, it is only that procedure provided by that law or statute that must be followed, relying on INEC & ANOR vs. ACTION CONGRESS & ORS. (2009) 2 NWLR (pt.1126) 524.
Learned Silk contended that the 1st respondent filed the application for leave to apply for Judicial Review on 12/1/11 claiming that INEC refused to accept the list of candidates containing his name for the election. That the election itself was held about 4 months thereafter in April 2011. That it was on 1st February, 2012, about 10 months after the holding of the election that the appellant was joined into the proceedings. It is his argument that the cause of action which ought to enure in favour of the 1st respondent could not have arisen later than April, 2011 when the subject election was held without the list containing the names of the 1st respondent. According to him, the three months listed by Order 34 Rule 4 of Federal High Court (Civil procedure) Rules 2009 had elapsed before the 1st respondent applied to have the appellant joined into the pre-existing proceedings. It is his view that the said action could not have commenced against the appellant earlier that 1/2/12; refers again to Order 9 Rule 14 (5) of the Federal High Court (Civil Procedure) Rules 2009; LIFF vs. PEASELEY (supra).
Learned Senior Counsel further submitted that the joinder was an abuse of court process because it was after the 1st respondent had failed at both the election tribunal and Court of Appeal that he decided to join the appellant on the same issue. He cites the cases of DINGYADI vs. INEC (no. 2) (2011) 18 NWLR (Pt.1224) 154 at 194 paras 11 to 195 para A.; S.P. & ASSOCIATES LTD vs. MARCH RICH & COMPANY AC (2003) FWLR (Pt.177) 922 at 936.
It was further submitted that in the Judicial Review proceedings, the complaint of the 1st respondent were tied to the April/May, 2011 general election and no more. It is his contention that as at the time application was filed for the joinder of the appellant and the subsequent order for the joinder, the subject election had been conducted which transmuted the issues existing between the appellant and the 1st respondent into a post-election regime. That the court below was wrong to have relied on the nullification of the election of the appellant as an event capable of reviving pre-election cause of action which had long extinguished with the holding of the subject election and the declaration of result. It is his view that had the learned trial judge considered the case of HASSAN vs. ALIYU (supra) at 604, he would not have misapplied the case of AMAECHI vs. INEC (surpa).
Learned Senior Counsel concluded that what the 1st respondent has sought to achieve by joining the appellant is to revive a cause of action which ordinarily he would not be allowed to commence against the appellant by a fresh action after the election, relying on the case of IGE vs. FARINDE (1994) 7 NWLR (Pt.354) 42 at 72. He then urged this court to hold that the joinder of the appellant was incompetent which ought to be struck out. He also urged this court to resolve the second issue in favour of the appellant.
In his reply to the first issue of the appellant (which the 1st respondent tags as Issue B in his brief), the learned Senior counsel for the 1st respondent submitted that the court below was right to join the appellant in this suit, relying on order 9 Rule 14 (3) of the Federal High Court (Civil Procedure) Rules, 2009. On the argument of the appellant that the service of the amended originating process could not have been served on him earlier than 1/2/12, the learned counsel for the 1st respondent submitted that no election took place before 1/2/12.
Reacting to the argument of counsel for the appellant that order 34 Rule 4 of the Federal High court (civil procedure) Rules 2009 limits the commencement of Judicial Review to three months from the date of accrual of cause of action, the learned Silk for the 1st respondent submitted that the above contention is induced by the erroneous assumption that the appellant was joined as a party to this suit after he had been declared a winner in the April/May, 2011 general election and sworn into office as a senator. That the correct state of affairs is that the appellant had no such toga adorning him despite his pretention and that he was not and has never been validly declared the winner of any senatorial election.
Learned Senior Counsel conceded that an amendment intended to revive a cause of action which is barred by statute of limitation at the time of the amendment is not permissible. The learned Silk however submitted that the case of UBA PLC vs. ABDULLAHI (supra) relied upon by the Appellant has no application to the facts of the instant application for Judicial Review including the joinder of the appellant as a party to this suit.
The learned Senior Counsel also argued, relying on the case of JATAU vs. AHMED (2003) 1 SC (Pt.11) 118 at 125, that any amendment to a process dates back to the date when the pleadings were originally filed. The arguments of the learned Senior Counsel for the 1st respondent in paragraphs 4.38 (pt.24) to 4.45 (page 27) are basically related to the substantive matter still pending before the lower court. I shall therefore refrain from even summarizing them. Learned counsel urged this court to resolve this issue in favour of the 1st respondent.
In respect of the first issue formulated by the 1st respondent which, for me, is in tandem with the appellant’s second issue, learned Senior Counsel for the 1st respondent submitted that the learned trial court properly and correctly exercised its discretion judicially and judiciously and took into account all relevant matters in granting the application to join the appellant herein as a party to this suit. That as at the date of the joinder of the appellant to this suit on 1/2/12, the previously held election for Anambra South Senatorial District had been nullified and a re-run election ordered. According to the learned Silk, the said re-run election ordered by the Court of Appeal was not held until May 2012 during which time the appellant was already joined as a party to this suit for Judicial Review.
On the reliance of the appellant on the case of HASSAN vs. ALIYU (supra) at 604, the learned Senior Counsel for the 1st respondent submitted that it is a clear distortion of the facts and law relating to the circumstances of the instant case. That in HASSAN vs. ALIYU (supra) the appellant as plaintiff instituted an action at the Federal High Court challenging his substitution as the PDP candidate many months after the substitution but after the 1st respondent had been sworn into office as the Governor of Niger State. That in the instant case, the following salient facts distinctively stand out, to wit:
(a) The Judicial Review proceedings was instituted prior to the conduct of the April, 2011 General Election.
(b) The learned trial court made orders of injunction restraining INEC from acting on any other list of names of candidates save the list containing the names of the 1st respondent and those he represents in this suit.
(c) INEC blatantly violated, disregarded and disobeyed the orders of injunction made by the lower court.
(d) The election held in April/May, 2011 for Anambra State South Senatorial District relied upon by the appellant was nullified by the Court of Appeal in CA/E/EPT/53/2011 by judgment dated 22nd December, 2011. A re-run election was ordered as a consequence.
(e) That as at 1st February, 2012 when the learned trial court made an order joining the appellant as a party to this suit, the re-run election ordered by the Court of Appeal was yet to be conducted.
It is his submission that as at 1st February, 2012 when the appellant was joined as a party to the suit, he was neither sworn in as a Senator nor winner of any Senatorial Election. It is his contention that the appellant’s erudite distinction between pre-election and post-election disputes is totally in disregard of the facts and features of the instant case. He opines that the facts of two cases must be either the same or at least similar before the decision in one case can be used as a guide in a later case, relying on the following cases: CHIEF GANI FAWEHINMI vs. NBA & ORS. (No. 2) (1989) 2 NWLR (Pt.105) 558 at 650; ADEGOKE MOTORS LTD vs. ADESANYA (1989) 3 NWLR (Pt.109) 250 at 275; EKWUNIFE vs. NGENE (2000) 2 NWLR (Pt.646) 650 at 667.
The learned Senior Counsel, for the 1st respondent has made copious submissions as to who is a necessary party to a suit on pages 16-21 of their brief of argument. With due respect to the learned Silk, this is outside the issue in consideration. The issue to the best of my knowledge is not whether or not the appellant is a necessary party but whether it was proper to join him at the time he was joined. I shall come back to this issue in the course of this judgment. The learned Senior Counsel urged this court to resolve this issue in favour of the 1st respondent.
In the reply brief filed by the appellant herein, the learned senior counsel for the appellant submitted that a greater chunk of the argument of counsel for the 1st respondent are clearly outside the issues submitted for determination. Secondly, that for the 1st respondent to rely on the setting aside of the election victory of Dr. Andy Uba, the 1st respondent ought to have specifically applied to join Dr. Andy Uba in his personal capacity and not in a representative capacity. Thirdly, that the specific leave granted the 1st respondent was to challenge the nomination and sponsorship of candidates for April, 2011 and do not pertain to the election of 20th March, 2012. That for the 1st respondent to bring the election of 20th March, 2012 into the well of litigation, he ought to obtain leave of court to amend his Grounds and Reliefs to that effect.
Clearly, the two issues submitted for the determination of this appeal turn on the competency of the two additional reliefs added to the original reliefs sought in the Judicial Review and the joining of the appellant as a party at the time it was made. There is a dispute between the appellant and the first respondent as to whether the amendment and subsequent joinder of the appellant was done before or after the holding of the subject election. Whereas the appellant contends that he was sued along with others after the holding of the election, the 1st respondent argues that he sued the appellant and his co-travellers before the holding of the election. I have to state here that different regimes of law and procedure govern each process. Therefore, a clear understanding of this aspect of the issue will certainly chart a course and roadmap for the resolution of this dispute. There are two elections being flaunted on this court by both parties. The 1st is the election of April/May, 2011 and the other one is the re-run election of 20th March, 2012. The amendment of the 1st respondent’s application for Judicial Review by which two additional reliefs were added and the joinder of the appellant to the suit was done on 1st February, 2012.
Let me examine the two additional reliefs and see if there is any feature in it which can point to which of the elections the 1st respondent was referring to. The additional reliefs are reliefs 5 and 6 in the Amended Application for Judicial Review and they read as follows:
“5. A further order of injunction directing the 1st respondent to regard and/or continue regarding to treat or to continue to treat and to accord forthwith all the rights/perquisites/privileges appertaining/accruing to the applicants as candidates of the Peoples Democratic Party for the Anambra South/Senatorial District and other Senatorial District/Federal Constituencies in Anambra State in April/May, 2011 general election.
6. An order of court taking away forthwith from the 3rd respondent and his associates whose names appear in the Chief Benjin Udeozor list of persons already mentioned above any rights, perquisites or privileges usurped and/or presently being enjoyed by them albeit undeserved as “candidates” of the PDP in the aforesaid April/May 2011 general elections.”
It is crystal clear that from the two additional reliefs quoted above, the 1st respondent was specifically referring to the election held in April/May, 2011. Indeed, it is res ipsa loquitor (the thing speaks for itself). The specific leave granted the 1st respondent was to challenge the nomination and sponsorship of candidates for the April/May, 2011 general elections. There is no mention of the election of 20th March, 2012 in the said relief. It was not contemplated; else the 1st respondent would have referred to it in the additional reliefs instead of the election of April/May, 2011 which had already taken place before he sought to amend his application to add the two reliefs and to join the appellant. Is it no more the law that parties are bound by their pleadings and by extension, the reliefs they seek from the court? Without much ado, I state clearly that parties are bound by their pleadings and reliefs they seek from the court. It is trite that the purpose of pleading is to give the other side at the earliest opportunity, the case the other side is to meet in court. Nobody is allowed to change the size and position of the goal post after the game has started except with the permission of the referee and notice on the other party. SEE AMERICAN CYANAMID COMPANY vs. VITALITY PHARMACETICALS LTD. (1991) 2 NWLR (Pt. 171) 15; OSHO vs. FOREIGN FINACIAL CORPORATION & ANOR. (1991) 4 NWLR (Pt.184) 157; SYLVESTER EZEKPELECHI UKAEGBU & ORS V. DURU ONONANWA UDOJI & ORS. (1991) 6 NWLR (Pt.196) 127, (1991) 7 SCNJ 244. It follows that for the 1st respondent to bring the election of 20th March, 2012 into the well of this litigation, he ought to obtain leave of court to further amend his Grounds and Reliefs to that effect. This, the 1st respondent has not done. That however is the first part of the issue.
The second part relates to the argument by the learned senior counsel for the 1st respondent that the above postulation is based on wrong facts of the case. It is his argument that the amendment and joinder of the appellant came during pre-election period having been so done on 1/2/12 against the holding of the re-run election of 20th March, 2012. By these arguments, the 1st scenario created above would make the amendment a post election activity while this second scenario would make it a pre-election action. From available records, the election of the appellant in the April/May, 2011 general election was nullified on 22/12/11 and a re-run election ordered which said re-run election was held on 20th March, 2012. Clearly, that would make the joinder of the appellant a pre-election issue. However, the learned Senior Counsel for the appellant in his reply brief has drawn the attention of this court to the fact that Dr. Andy Uba was not sued in his personal capacity but as representing a host of others and the effect of such capacity in this suit.
It has to be noted that Dr. Andy Uba was joined as a defend ant in this suit by the 1st respondent (as applicant) in a representative capacity for himself and on behalf of other candidates for the self-same National Assembly Election in Anambra State whose names were contained in a rival list (Benji Udeozor’s list) including those who did not even win the general election in their respective constituencies. From the title of the parties in the suit, it encompasses all the PDP candidates for the April, 2011 Senatorial District and Federal Constituencies election in Anambra State in the rival list. I do believe that the 1st respondent knew the purport of instituting the action in a representative capacity which carries the understanding that there is a commonality of interest on each side of the divide geared towards the determination of which list should be used in the conduct of the April, 2011 general election. It is noteworthy that the 1st respondent also sued in a representative capacity. It is trite that in a representative action, the interest of the representative is fused with that of the group he represents else, he cannot represent them. In other words, whether they sue as plaintiff or are sued as defendants (as in this case) they must have a common interest in one cause or matter. If not, the plaintiff cannot sue or be sued on their behalf. They rise and fall together. See BUSARI AYINDE & ORS vs. ADEDOKUN ALHAJI & ORS. (1988) 1 SC. 106; ORAGBALAIDE vs. ONITJU (1962) 1 ALL NLR 32; J. W. AMU vs. J. B. ALANE & ANOR. (1974) 10 SC. 163.
The two additional reliefs sought by the 1st respondent at the court below is really his claim before that court and the capacity of the parties has been clearly defined. As I said earlier, it is too late in the day for the 1st respondent to change the goal post in the middle of the game. For the 1st respondent to rely on the setting aside of the election victory of Dr. Andy Uba, he ought to have specifically applied to join Dr. Andy Uba in his person al capacity and not in a representative capacity. This is so when it is appreciated that all the candidates whose names appeared in Benji Udeozor’s list, who are herein represented by Uba stood for only the April/May, 2011 election save for Dr. Andy Uba who also stood for the 20th March, 2012 election by order of the Court of Appeal. It has to be noted also that as at the 11th October, 2011 when the 1st respondent filed his application for joinder, Dr. Andy Uba’s victory at the April, 2011 election had not been set aside. This shows that even the application for joinder was post-election. It follows that the said nullification of the result of that election could not be a ground for the application for joinder.
For me, given the additional two reliefs sought in the amended originating summons and the capacity which the appellant was joined in this suit, it is my well considered opinion that it is the date of the general election of April/May, 2011 and no other date that should be employed as a watershed in defining whether or not the 1st respondent’s action had become unenforceable against the appellant and those he represents. The 1st respondent’s application for Judicial Review was tied to the April/May, 2011 general election and no more. When that election was conducted by INEC and result declared, any other complaint being raised for the first time after the election must be deemed to be a post-election matter. As at the time the application was filed for the joinder on 11/10/11 and the subsequent order for the joinder made, the subject election had been conducted which transmuted the issues existing between the appellant and the 1st respondent into a post-election matter. This is much more so when it is viewed from the angle that the 1st respondent filed an election petition against the return of the appellant. He lost both at the election tribunal and the Subsequent appeal at the Court of Appeal. It was after he completed the cycle of that case at the Court of Appeal that it dawned on him to join the appellant and his co-travellers in the pending suit for Judicial Review. Therefore, the facts of this case clearly show that the amendment and the joinder of the appellant was done postelection.
I will now consider the propriety or otherwise of the amendment and joinder of the appellant at the stage it was done. From the two additional reliefs reproduced above, the following facts are discernible viz:
(a) The election of April/May 2011 was duly held, won and lost.
(b) The appellant enjoys some rights/perquisites/privileges deriving from the conducted election.
(c) Those rights which the appellant is enjoying are a result of standing for the said election.
(d) The 1st respondent is praying the Federal High Court to strip the appellant of those rights, perquisites and/or privileges enjoyed by him as the winner of the election.
(e) The 1st respondent is seeking for the order of the Federal High Court investing him with those rights, perquisites and/or privileges being presently enjoyed by the appellant as the winner of the election.
When the 1st respondent herein on 11th October, 2011 asked the court below for “an order of court taking away forthwith from the respondent and his associates whose names appear in the Chief Benji Udeozor’s list of persons already mentioned above any rights, perquisites or privileges usurped and or presently being enjoyed by them albeit undeservedly as “candidates” of the PDP in the aforesaid April/May, 2011 general election”, he knew or is deemed to have known that the said election had been held, won and lost. It is my view that what the appellant was asking for in November, 2011 in respect of an election which was held in April, 2011, (the election of Dr. Uba not having been annulled until 22/12/11) was indeed a post-election request. This is simple arithmetic. It does not require a Professor of Mathematics to calculate this. An election was held in April, 2011. In November, 2011, the 1st respondent filed an application bringing in two additional reliefs to his existing suit that the appellant be stripped of the rights he is enjoying as a result of the subject election and given to him. Clearly, this is a post-election relief. Simple.
However, whether it is a pre-election matter as the 1st respondent would want the court to believe or a post-election matter which the appellant postulates and accepted by this court, they are governed by the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Electoral Act, 2010 (as amended). It follows that an aggrieved person who wishes to pursue either a pre-election grievance or post-election complaint must bring himself within the confines and contemplation of both laws. As was rightly submitted by the learned Senior Counsel for the appellant, the right to contest an election or to hold a public office is not a common law right but a right given by the Constitution of the Federal Republic of Nigeria, 1999 (as mended) and the Electoral Act, 2010 (as amended). A party who therefore could not bring himself within the contemplation of the extant constitutional and statutory provisions in Nigeria in pursuing either a pre-election issue or post-election matter would have lost his right of action even though he may have had a cause of action, genuine or otherwise. This was given judicial stamp of authority both by the Court of Appeal and the Supreme Court in the case of HASSAN vs. ALIYU (2010) 17 NWLR (pt. 1223) 547 at 589-590. Incidentally, I wrote the lead judgment in this case at the Court of Appeal which was gleefully affirmed by the apex court. I am therefore at home with what is going on here. See also KOLAWOLE vs. FOLUSHO (2009) 8 NWLR (Pt.1143) 338 at 396; UDEAGHA vs. OMEAGARA (2010) 11 NWLR (Pt.1204) 168; OLOFU vs. ITODO (2010) 18 NWLR (Pt.1225) 545 at 577-578; ODEDO vs. INEC (2008) 17 NWLR (Pt.1117) 554 at 635 paras B-D.
I agree with the learned senior counsel for the 1st Respondents that it is now trite and well settled law that any amendment made or ordered at any stage of the proceeding before judgment or even in an appeal, dates back to the date when the pleadings were originally filed. This means that once pleadings are amended, what stood before the amendment is no longer material before the court and no longer defines the issues to be tried. See JATAU v. AHMED (2003) 1 SC (Pt. 11) 118 at 125; ROTIMI v. MC GREGOR (1974) 11 SC 102 at 116; PETROLEUM EQUALIZATION MANAGEMENT BOARD v. GREENIGAS LTD (1986) 3 NWLR (Pt. 39 132.Applying the above principle to the case at hand, it means the two additional reliefs added on 1st February, 2012 should originally be taken to have related back to the date of filing of the Original Judicial review proceedings. This is what is called in judicial parlance as the Relation Back Theory. There is no doubt that this theory will apply in full force where the right being pursued is a common law right in which there is no time bar for the agitation of the cause. However, by Order 34 rule 14(5) of the Federal High Court (Civil Procedure) Rules, 2009 a different regime applies in the instant case where the amendment is contemporaneous with the joinder of a party to the suit. The Rule of court alluded to above states.
“14(5) Every party whose name is added as defendant shall be served with the originating process or Notice in the manner prescribed in this Rules or in such manner as may be prescribed by a judge and the proceeding against such person shall be deemed to have begun on the service of such originating processes or notice. (Underlining mine for emphasis)”
It is trite that where a party is sued and served with an originating process and that process is subsequently amended, such amendment relates back to the date the original process was filed as earlier stated above. See JATAU v. AHMED (Supra). However, where there is an amendment of the process which adds the name of a new defendant in the process of the hearing and the said new defendant is served with the originating process or Notice whether amended or not, the proceeding against such a party shall be deemed to have begun on the date the service of such originating process or notice was served on him.That is how I understand the said provision. Now going by the above provision and the interpretation I have placed on it, the introduction of the two additional reliefs against the appellant shall be deemed to have taken effect from the date the amended originating processes were served on him. Certainly, this took place on or after 1st day of February, 2012, about 10 months after the election of April/May, 2011 which the 1st Respondent by the two additional reliefs, is challenging. What this means is that the amendment, as far as the appellant is concerned cannot date back to when the Application for judicial review was filed which would have made the suit a pre-election suit.
That is not the only virus which plagues the 1st Respondent’s amendment in this matter. By Order 34 rule 4 of the Federal High Court (Civil Procedure) Rules, 2009 an aggrieved person must bring an action for judicial Review within three (3) months of the accrual of the cause of action. A cause of action has been defined simply as the existence of an aggregate of facts which when proved will entitle a plaintiff to a remedy against a defendant. See TAIYE OSHOBOJA V. ALHAJI SURAKATU I. AMUDA & ORS (1992) NWLR (Pt. 250) 690, BELLO v. A.G OYO STATE (1986) 5 NWLR (Pt. 45) 828; EGBE v. ADEFARASIN (1987) 1 NWLR (pt. 47) 1 at 20; EGBUE v. ARAKA (1983) 3 NWLR (Pt. 84) 598.In the instant case, the cause of action arose when INEC refused to accept the list of candidates containing the names of the 1st Respondent and his cotravellers in this suit, preferring the one with the Appellant and those he is said to represent in this suit. That happened before April 2011 when the subject election took place. The 1st Respondent did not bring this suit for judicial review against the Appellant until 1/2/12, about 10 months after the accrual of the cause of action. The said amendment, with all intents and purpose is against the tenor and intendment of order 34 Rule 4 of the Federal High Court (Civil Procedure) Rules 2009. It is trite that any amendment of a writ of summon or pleadings which will have the effect of reviving a cause of action which is barred by the statute of limitation at the time of the amendment is not permissible. This is so because it has the tendency of taking away the defendant’s right which has vested in him and would be prejudicial to him. For me, I think the amendment granted by the learned trial judge is intended to overreach the Appellant. See UBA PLC v. ABDULLAHI (2003) 3 NWLR (Pt. 307) 359 at 379. See also the English case of LIFF v. PEACELY (1980) 1 ALL ER 623 at 632 a-b, 640 Para F. Although the learned Senior Counsel for the 1st Respondent has argued that the above two cases do not apply to the facts of this case, I however, with due respect disagree and hold that the two cases are very apposite on this point.
I had held earlier in this judgment that the 2 additional reliefs added by the lower court by way of an amendment is couched in post-election rhythm. That being the case, the proper forum in which the two reliefs should have been ventilated is a properly constituted election petition filed at the appropriate Election Tribunal within 21 days of the declaration of result and thereafter to be determined within 180 days from the date of filing the petition while the ensuing appeal must be determined within 60 days of the judgment of the Election Tribunal. See Section 285(1), (5), (6) and (7) of the Constitution of Federal Republic of Nigeria (1999 (As Amended) and Section 131(1) 134 (4) of the Electoral Act 2010 (As Amended).
I have also shown that even if the matter was to be a pre-election matter, the 1st Respondent failed to file the matter before the holding to the subject election. However one looks at it, the Federal High Court had no jurisdiction or competence to have allowed the two additional reliefs against the appellant about 10 months after the conduct of the subject election as stated in the reliefs sought.
It was submitted that the joinder of the Appellant in this matter is an abuse of court process in that the 1st Respondent is guilty of forum shopping. There is no doubt that after the election of April/May 2011 as stated in the reliefs sought, the 1st Respondent filed an election petition at the election tribunal and lost. He subsequently appealed to the Court of Appeal and lost. It was after he lost in the two courts that he thought it wise to commence another action against the Appellant at the Federal High Court in order to strip the Appellant of his rights, perquisites and privileges as a Senator and that these privileges be given to him. I think it is totally incongruous and unabashedly inconsistent to move from post-election backwards to pre-election. Under our democratic setting represented by the constitution and the Electoral Act, it is not possible and permissible to move from post-election back to pre-election matters. As was duly argued by the learned counsel for the Appellant, occasions may only arise where pre-election disputes, with the holding of the election transmit into post-election disputes. Definitely, it cannot be otherwise. It is therefore a gross abuse of court process when the 1st Respondent who lost at the Election Tribunal and the Court of Appeal thought it wise to join the Appellant into a pre-election matter about 10 months after the holding of the election. The law is very clear on this point that there must be an end to litigation. See S.P. & ASSOCIATES LTD v. MARCH RICH & COY A.G. (2003) FWLR (Pt. 177) 922 at 936.
The 1st Respondent herein brought this application for Judicial Review under the Federal High Court (Civil Procedure) Rules 2009. It is this same Rules that provides the vehicle and platform by which the action was initiated. The 1st Respondent is therefore bound in pursuit of his rights vides Judicial Review to comply with aforesaid Rules of court. The law is settled that Rules of court are not made for the fun of it, they must be obeyed. See ASTC v. QUORUM CONSORTUIM LTD (2009) 9 NWLR (Pt. 1145) 1 at 29. It is therefore well established that where a statute provides a way by which a thing has to be done, it is only that procedure provided by that law or statute that should be followed. There must be certainty of the law. Parties are not allowed to walk in and out at their whims and caprices, else there would be chaos in the judicial process. See INEC & ANOR v. ACTION CONGRESS & ORS (2009) 2 NWLR (Pt. 1126) 524. Having failed to bring this action against the Appellant within 3 months of the accrual of the cause of action in line with Order 34 rule 4 of the Federal High Court (Civil Procedure) Rules 2009, I hold that the joining of the Appellant in this suit about ten months after the accrual of cause of action was irregular. What the 1st Respondent sought to achieve by the joinder of the Appellant is to revive a cause of action which ordinarily he would not be allowed to commence against the Appellant by a fresh action at the Federal High Court after the election. It was the Supreme Court which stated clearly in IGE v. FARINDE (1994) 7 NWLR (Pt. 354) 42 at 72 that:
“leave will also not be granted to add or substitute a plaintiff where to do so would prevent the defendant from relying on statute of limitation. MABRO v. EAGLE STAR AND BRITISH DOMINATIONS INSURANCE CO. (1932) 1 K.B. 485. In that case the Court of Appeal (England) refused to allow a party to be added because to do so would have defeated the defence of the statute of limitation which was open to the Defendant.
If the facts show either the particular plaintiff or a new cause of action sought to be added are barred, it would be unjust to deprive a defendant of a legal defence and it will not be possible for the court to disregard the statute.”
The case of AMAECHI v. INEC (supra) relied upon by the learned trial judge in joining the Appellant to this suit is not fully applicable to the facts of this case. In Amaechi’s case, the pre-election dispute was filed before the holding of the election. That is not the case here.
On the whole, it is my view that since the 1st Respondent did not pursue his right or cause of action against the Appellant before the holding of the election, but waited for the election to take place, his grievance against the appellant ceases to be a pre-election matter. There is therefore no jurisdiction in the regular courts to determine the issues as between the Appellant and the 1st Respondent. The joinder of the appellant and the reliefs sought against him are incompetent.
As can be seen from all I have said above, the two issues submitted for the determination of this appeal are resolved in favour of the Appellant. As it stands, this appeal succeeds and is hereby allowed. The order of the Federal High Court, made on 1/2/12 joining the Appellant to the Application for Judicial Review against INEC and the two additional reliefs against the Appellant is hereby set aside. Accordingly, the two additional reliefs are hereby struck out. The name of the Appellant is also stuck out from the Judicial Review Proceedings. I make no order as to costs.
PHILOMENA MBUA EKPE, J.C.A: I have been privileged to read in draft the judgment just delivered by my learned brother JOHN I. OKORO, JCA. I am in total agreement with his reasoning and conclusions. This appeal therefore succeeds and is hereby allowed. The order of the Federal High Court made on the 1st day of February 2012 joining the Appellant to the application for Judicial Review is hereby set aside. The name of the Appellant is also struck out from the Judicial Review Proceedings. I make no order as to costs.
HARUNA SIMON TSAMMANI, J.C.A: I had the advantage of reading before now, the judgment delivered by my learned brother JOHN INYANG OKORO; JCA.
The issues that called for determination in this appeal have been exhaustively considered and resolved by my learned brother. I agree with the reasoning and conclusions of my learned brother that the appeal has merit. I have nothing else useful to add. Accordingly, I am also of the view and do hold that this appeal has succeeded. I therefore make an order striking out the name of Appellant in the Judicial Review Proceeding at the Court below and the two additional reliefs sought against the Appellant.
I abide by the order on costs.
Appearances
Arthur Obi Okafor, Esq., (SAN) with Marthins Okeke Esq., C. S. Okafor (Miss) and P. U. Okoh (Miss)For Appellant
AND
P. I. N. Ikweto Esq., (SAN), Chief I. Ezechukwu Esq. (SAN) with K. I. Uduma Esq.
C. B. Anyigbo Esq. (holding the brief of Ben Osaka Esq.)For Respondent
