DR RICHARD EGENTI v. FERDINAND DOZIE NWANKWO & ORS
(2019)LCN/13642(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of July, 2019
CA/E/EPT/01/2019
RATIO
PARTY: WHAT MAKES A PERSON A NECESSARY PARTY TO AN ACTION
The law is that for a person to be a necessary party to an action, he should be bound by the result of the action. The questions to be settled in the action must be questions which cannot be effectually and completely settled unless he is a party. The Court is expected in the interest of justice to join as plaintiff or defendant anyone who may have a stake in the subject matter of the suit or may be affected by the decision. See AZUBUIKE v. PDP & ORS (2014) LPELR-22258 (SC), Per RHODES-VIVOUR, J.S.C. PER ABUBAKAR SADIQ UMAR, J.C.A.
HOW TO DETERMINE A NECESSARY PARTY
In determining who a necessary party is; one must not be oblivious of the fact that election matters are sui generis. They are governed largely by the laws and proceedings specially made to regulate its proceedings as against ordinary proceedings.
Section 137 of the Electoral Act, 2010 (as amended 2015) provides that:
137. (1) An election petition may be presented by one or more of the following persons:
(a) a candidate in an election;
(b) a political party which participated in the election.
(2) A person whose election is complained of is, in this Act, referred to as the respondent.
(3) If the petitioner complains of the conduct of an Electoral Officer, a Presiding or Returning Officer, it shall not be necessary to join such officers or persons notwithstanding the nature of the complaint and the Commission shall, in the instance, be-
(a) made a respondent; and
(b) deemed to be defending the petition for itself and on behalf its officers or such persons.? (Underlining mine for emphasis).
The above provision of the Electoral Act is clear and devoid of any ambiguities as to who can present a petition and who can respond to same.
From the petition presented by the 1st and the 2nd Respondents and from the affidavit in support of the Appellant?s application for joinder, the question I ask is that ?is the Appellant the person or party whose election is complained of?” By any stretch of imagination, the question cannot be answered in the positive. The Appellant is not the party whose name was forwarded to the 3rd Respondent by the 4th Respondent neither was his name published as the candidate of the Anaocha/Dunukofia/Njikoka Federal Constituency of Anambra under the platform of the 4th Respondent. Also as admitted by him, he was not issued a certificate of return as the elected candidate by the 3rd Respondent. PER ABUBAKAR SADIQ UMAR, J.C.A.
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria
Between
DR RICHARD EGENTI Appellant(s)
AND
1. FERDINAND DOZIE NWANKWO
2. ALL PROGRESSIVE GRAND ALLIANCE
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. PEOPLES DEMOCRATIC PARTY
5. AYIKA VALENTINE Respondent(s)
ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the National and State Houses of Assembly Election Tribunal sitting at Awka, Anambra State delivered on the 17th day of May, 2019 wherein they dismissed the Appellant?s application to be joined as a party to the petition.
BRIEF FACTS OF THE CASE
By a Motion on Notice dated the 20th day of April, 2019 and filed on the 26th day of April, 2019, the Appellant amongst other prayers prayed the National and State Houses of Assembly Election Tribunal, Awka, Anambra State for:
?An order of this Honourable Court joining Dr. Richard Egenti (the party seeking to be joined/Applicant herein) as the 4th Respondent in this petition No. EPT/AN/HR/07/2019 now pending before this Honourable Court.?
?The case of the Appellant as gleaned from his affidavit on pages 777 ? 784 of Vol. 2 of the Record of Appeal in support of the application is that he contested the primary election of his party, the People?s Democratic Party (PDP) and won and that the PDP Appeal panel set up by the Party affirmed his victory as the
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winner of the party?s primary election for Anaocha/Njikoka/Dunukofia Constituency. It is also the case of the Appellant that the name of the 3rd Respondent who did not win the primaries was sent to INEC instead of his name and aggrieved by this development, he filed suit N0. FCT/HC/CV/3065/18 against the PDP and INEC at the FCT High Court sitting in Abuja and same was decided in his favour.
The Appellant stated that in the said suit, the Court (supra) ordered that he is the candidate and that his name be submitted by the PDP to and published by INEC. It is also the case of the Appellant as gleaned from his affidavit in support of his application for joinder that his name was not published by INEC as the PDP had appealed against the said judgment delivered by the said Court to the Court of Appeal. The Appellant stated further that despite the failure of the appeal of the PDP in the Court of appeal, INEC still refused to publish his name as the PDP further appealed to the Supreme Court and that while the appeal at the Supreme Court was still pending, INEC released the final list of candidates for the election in his constituency and the column for his
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party was vacant with a comment ?Court Order. Party yet to submit name of candidates?.
It is also the case of the Appellant that the appeal panel decision of the PDP is final as far as primary election results are concerned and both INEC and his party are supposed to have given same full effect even without an order of Court. The Appellant stated further that as the candidate, who won the primary election, he campaigned in all the wards of his constituency and his people voted massively for him but that shortly before the general election, precisely on the 11th day of February, 2019, the Supreme Court delivered its judgment in the appeal filed by the PDP wherein the Court held that the appeal was incompetent having been filed 40 days outside the 14 days required by the 4th alteration to the constitution and thereafter struck out the said appeal. It is also the case of the Appellant that the Supreme Court in the same judgment equally held that his original suit that culminated into the appeal filed by the PDP was also incompetent having been filed outside 14 days required by the 4th Alteration and thereafter also struck the suit out. The
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Appellant further stated that what remained untouched was his victory as affirmed by the PDP appeal panel. The Appellant stated further that he participated in all the stages of the election, campaigning up till the moment the PDP was declared as the winner but that not minding the fact that he is the candidate of the PDP that won the election, INEC purportedly uploaded the name of the 3rd Respondent as candidate of the party and subsequently issued the 3rd Respondent a certificate of return despite his protest. According to the Appellant, the petitioner who knew him as his opponent in the election chose to sue INEC, PDP and the 3rd Respondent only and that whichever way the decision of the tribunal goes it will ultimately affect his right as the nominated candidate of the party that won the primary election and was affirmed by the PDP appeal panel and that the non-granting of his application for joinder will work great injustice against him.
?
In opposition to the application, the 1st and 2nd Respondents at the tribunal filed a counter affidavit and written address. It is important to state that only the 1st and 2nd Respondents filed a counter affidavit
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and a written address before the tribunal as that of the 5th Respondent was discountenanced having been filed out of the time stipulated by the provisions of Paragraphs 47(4) of the 1st Schedule to the Electoral Act, 2010 (as amended).
?
In the said counter affidavit of the 1st and 2nd Respondents, it was deposed amongst others that the PDP did not submit the name of the 5th Respondent and the Appellant to INEC before the election as a result of the dispute as to who was the rightful candidate for Anaocha/Dunukofia/Njikoka Federal Constituency election which went up to the Supreme Court. It is the case of the 1st and 2nd Respondents that although the Appellant was determined to be the candidate of the PDP in respect of the general election by the Appeal Panel of the said party but that his name was not forwarded to INEC by the party as its candidate for the election and that neither the 5th Respondent nor the Appellant participated in all the stages of the election nor campaigned for the election in issue since their names were not with INEC as candidates for the election. The 1st and 2nd Respondents stated that the returning officer declared and returned
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the PDP as the winner of the election without stating its candidate because it had no candidate in the election. The 1st and 2nd Respondents stated further that the 1st Respondent being the candidate of the APGA won the majority of lawful votes cast in the election and ought to have been returned as the winner of the election. Being dissatisfied with the conduct of INEC, he filed a petition on the 15th March, 2019 serving same on all the Respondents and in response to which they all filed their respective replies and a subsequent reply by him thereto. The 1st Respondent stated that the Appellant?s motion was filed more than 21 days after declaration of the result and basically seeking to amend the petition in respect of the parties to it when the time within which such application may be presented had since expired.
Upon hearing of the said application, the tribunal in its ruling dismissed the Appellant?s application hence this appeal vide a Notice of Appeal containing 5 grounds of appeal dated the 10th day of June, 2019 and filed on the same date.
?
The Appellant?s brief dated the 22nd day of June, 2019 was filed on the 24th day of
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June, 2019. The Appellant also filed a separate Reply Brief to the Briefs of the Respondents. The Reply Briefs all dated 29th day of June, 2019 were filed on the 1st day of July, 2019. All were settled by A.C. OZIOKO, ESQ. who distilled a sole issue for determination to wit:
?Whether the tribunal was right in refusing to join the Appellant as party to the petition? (This issue related to Grounds 1, 2, 3, 4, and 5 of the Appeal).?
The 1st and 2nd Respondent?s Brief of Argument dated the 27th day of June, 2019 and filed on the 28th day of June, 2019 was settled by OLUSOLA A. DARE ESQ. who also distilled a sole issue for the determination of this appeal to wit:
?Whether or not the election tribunal was right to have refused to join the Appellant as a Respondent to the Petition?
The 3rd Respondent?s Brief of Argument is undated but was filed on the 28th day of June, 2019. It was settled by E.E. UDE ESQ. He distilled three issues for the determination of this appeal to wit:
?1. Whether having regards to the provisions of Section 285(9) the constitution of the Federal Republic of Nigeria 1999 as altered by the 4th alteration 2018
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, the application is not statute barred?
2. Whether having regards to the decision of the Supreme Court in Suit No. SC/1330/2018 (Peoples Democratic Party V. Richard Egenti & Anor) and indeed the operation of the doctrine of res judicata, this Honourable Court has jurisdiction to hear and determine his present appeal?
3. Whether having regards to the decision of the Supreme Court in Suit No. SC/1330/2018 (Peoples Democratic Party V. Richard Egenti, and indeed the provisions of Section 137(1) of the Electoral Act 2010 as amended, the appellant has the locus standi to present the application for joinder
The 4th Respondent?s Brief of Argument dated the 27th day of June, 2019 and filed on the 28th day of June, 2019 was settled by EMMANUEL ENOIDEM ESQ. He adopted the sole issue distilled by the learned counsel to the Appellant for the determination of this appeal.
?
The 5th Respondent?s Brief of Argument dated the 27th day of June, 2019 and filed on the 28th day of June, 2019 was settled by F.O. ANYANEGBU ESQ. He also adopted the sole issue distilled by the learned counsel to the
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Appellant for the determination of this appeal.
The Appeal was taken on July, 1, 2019 wherein learned counsel for the Appellant and Respondents adopted their respective briefs and made oral adumbrations in respect of their various positions and contentions in this appeal.
ARGUMENTS ON ISSUES
APPELLANT?S SUBMISSIONS
On his sole issue distilled for the determination of this appeal, learned counsel to the Appellant submitted that various provisions in the Rules of Courts, including Order 9 Rule 14 Sub-Rule (3) of the Federal High Court Civil Procedure Rules; and Paragraph 18(6) (a) of the First Schedule to the Electoral Act, 2010 (As Amended) provide for joinder of parties to a suit or petition as the case may be. Counsel submitted further that the essence of joinder of parties to an action is to prevent multiplicity of actions arising from the same transaction and to facilitate the decision o
