IFEANYICHUKWU OKONKWO & ORS. V. DR. CHRIS NWABUEZE NGIGE & ORS.
(2006)LCN/1865(CA)
In The Court of Appeal of Nigeria
On Monday, the 16th day of January, 2006
CA/E/EPT/5A/2005(CONSOLIDATED)
RATIO
APPEAL: WHETHER ANY APPLICATION IN AN ELECTION MATTER MUST BE BASED ON RELEVANT SECTIONS OF THE CONSTITUTION
Any application in an election matter must be based on the relevant sections of the Constitution, the Electoral Act 2002 and the Practice Direction No.2 of 2003 issued by the President of the Court of Appeal by the powers vested in him by section 285 of the 1999 Constitution, and section 137 of the Electoral Act 2002. PER ADEKEYE, J.C.A.
COURT PRACTICE: THE NATURE OF PROCEEDINGS IN ELECTION PETITION/APPEALS
I find it convenient at this juncture to quote from the case of Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 446 to throw light into the nature of proceedings in Election petitions/appeals. “An election petition is a proceedings which is sui generis, as it is of its own kind possessing an individualistic character, unique or like only to itself. It is distinct from ordinary civil proceedings. It is not particularly related to ordinary rights and obligations of the parties concerned. The slightest non-compliance with a procedural step which otherwise could either be cured or waived in ordinary civil proceedings could result in a fatal consequence to the petition.” Kallamu v. Gurin (2003) 16 NWLR (Pt. 847) 493; Buhari v. Obasanjo (2003) 17 NWLR (Pt. 850) 423. Section 139 of the Electoral Act provides that: “The rules of procedure to be adopted for election petitions and appeals arising therefrom shall be those set out in the First Schedule to this Act. It is imperative therefore that the procedure laid down in the Electoral Act 2002 be strictly complied with, except to the extent that it is waived under paragraph 49(1) of the First Schedule. PER ADEKEYE, J.C.A.
JUSTICES
JAMES OGENYI OGEBE Justice of The Court of Appeal of Nigeria
OLUFUNLOLA OYELOLA ADEKEYE Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
Between
IFEANYICHUKWU OKONKWO
(Suing for himself and on behalf of the Nigeria Advance Party as parties interested in the appeal) Appellant(s)
AND
1. DR. CHRIS NWABUEZE NGIGE
2. MR. PETER OBI
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION & 449 ORS. Respondent(s)
ADEKEYE, J.C.A. (Delivering the Lead Ruling): In the two separate appeals CA/E/EPT/5A/05 and CA/E/EPT/5B/05 against the decision of the Governorship/Legislative Houses Election Tribunal, Awka, Anambra State in EPT/AN/GOV/42/2003 delivered on 12/8/05, the applicant Ifeanyichukwu Okonkwo, for himself and on behalf of the Nigeria Advance Party, filed similar applications on 9/11/05 praying this court for the under mentioned reliefs:
(a) An order of the Honourable Court granting leave to the applicant to appeal to the Court of Appeal and or to join in the appeal against the decision of the Governorship and Legislative Houses Election Tribunal, holden at Awka, Anambra State, dated 12/8/05 in the petition No. EPT/AN/GOV/42/2003 as a person having interest in the matter or to join in the appeal in that capacity.
(b) An order for enlargement of time within which to seek “leave” to appeal.
(c) An order for leave to appeal.
(d) An order for extension of time within which to appeal.
(e) An order seeking leave to appeal on issue of jurisdiction as a new issue, same having not been raised in the tribunal below and is before the Court of Appeal for the first time.
In arguing the application in the appeal CA/E/EPT/5A/05 the applicant conceded that any order made by this court shall be deemed applicable and binding in the appeal No. CA/E/EPT/5B/05.
He argued the grounds for the application and submitted that he was not a party on record before the lower tribunal, he is nevertheless aggrieved and dissatisfied with the decision of the tribunal delivered on 12/8/05. He is interested in the appeal hence he has brought this application to ask for leave to be joined as a party, and also has the mandate to represent his party Nigeria Advance Party.
The Federal High Court in suit No. FHC/EN/CS/172/2003 had declared on the 27th of May, 2005 that himself and his party were unlawfully excluded by INEC from contesting in the election held on the 19th of April, 2003. He has the locus standi to bring this application as he has suffered the same injury and has a right to the same relief as the other appellants in this appeal. As the time to file an appeal had lapsed he is asking for leave of this court to appeal. The applicant referred to the ground on the issue of jurisdiction, which is on the validity of the election tribunals created by section 285(1) and (2) of the 1999 Constitution. He is raising the issue for the first time before this court. The Registrar of the lower tribunal disallowed him from presenting his petition.
The court is to grant his application particularly when there is no valid counter-affidavit before the court opposing the application. Chief Okolo, SAN, counsel for the appellant/respondent leaves the application at the discretion of this court.
Dr. Ikpeazu, SAN, counsel for the 2nd respondent in this application referred to the counter-affidavit to oppose the application filed on the 30th of May, 2005 and urged this court to dismiss the application as the applicant has no legal interest to support his application to be joined as a party interested. The right of the applicant in the election was determined by this court in the suit reported as Okonkwo v. INEC & Ors. (2004) 1 NWLR (Pt. 854) 242. It is an abuse of the process of this court to bring this application. Parties to an election petition are as defined in the electoral Act 2002. The applicant must be qualified as a party, joinder cannot be invoked. Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 446; Okonkwo v. Mode (Nig.) Ltd. (2002) 14 NWLR (Pt. 788) 588.
The applicant failed to exhibit the judgment of the tribunal, which makes the application for tripod prayers incompetent.
Dr. Layonu for the 3rd respondent in this application associated himself with the foregoing submission of Dr. Ikpeazu, SAN, and added that section 138 of the Electoral Act must be invoked as to the time limit to file an appeal. This court lacks the jurisdiction to extend time for the applicant to appeal and cited a case in support.
Mr. Okonkwo replied on points of law and made reference to the cases.
The relief sought in the application before this court can be categorized as follows:
(a) For leave to be joined in the appeal before this court against the decision of the Governorship/Legislative Houses Election Tribunal holden at Awka Anambra State delivered on 12/8/05 as a party interested in the appeal.
(b) For the tripod prayers –
(1) Extension of time within which to seek leave to appeal.
(2) An order for leave to appeal
(3) An order for extension of time to file notice and grounds of appeal.
(c) Appeal on issue of jurisdiction as a fresh issue.
The applicant submitted that the application is brought pursuant to sections 6(6)(a) and (b), 24 A (e), 243(a) & (b); 246 (1)(b) & (ii) of the 1999 Constitution of the Federal Republic of Nigeria and Order 3 rules 3(1) of the Court of Appeal Rules 2002. A cursory look at the application, the grounds for the reliefs and the enabling laws of the application indicate an apparent misconception of the nature of the application sought by the applicant. The enabling laws are in support of a relief sought in an ordinary civil proceedings and not in an application for joinder or leave to appeal out of time in an election matter.
The applicant failed to exhibit the judgment of the lower tribunal being appealed against particularly in support of his application for tripod prayers even though a notice of appeal is attached, this court has no means of properly identifying his interest in the appeal. This omission makes the application incompetent. Any application in an election matter must be based on the relevant sections of the Constitution, the Electoral Act 2002 and the Practice Direction No.2 of 2003 issued by the President of the Court of Appeal by the powers vested in him by section 285 of the 1999 Constitution, and section 137 of the Electoral Act 2002.
I find it convenient at this juncture to quote from the case of Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 446 to throw light into the nature of proceedings in Election petitions/appeals.
“An election petition is a proceedings which is sui generis, as it is of its own kind possessing an individualistic character, unique or like only to itself. It is distinct from ordinary civil proceedings. It is not particularly related to ordinary rights and obligations of the parties concerned. The slightest non-compliance with a procedural step which otherwise could either be cured or waived in ordinary civil proceedings could result in a fatal consequence to the petition.”
Kallamu v. Gurin (2003) 16 NWLR (Pt. 847) 493; Buhari v. Obasanjo (2003) 17 NWLR (Pt. 850) 423.
Section 139 of the Electoral Act provides that:
“The rules of procedure to be adopted for election petitions and appeals arising therefrom shall be those set out in the First Schedule to this Act.
It is imperative therefore that the procedure laid down in the Electoral Act 2002 be strictly complied with, except to the extent that it is waived under paragraph 49(1) of the First Schedule.
In the applicant’s relief for joinder it is inevitable that for such order to be granted to prosecute this appeal as an interested party, his legal interest in the suit must be properly and distinctly established to the satisfaction of this court. This in order words means that he must have locus standi to prosecute this appeal. In order to be joined as an interested party he must have the same legal interests as the other appellants in this case. The applicant claimed to be dissatisfied and aggrieved by the decision of the lower tribunal delivered on the 12th of August, 2005.
I regard this as very interesting as he never contested an election hence was never a petitioner or respondent in the petition before the lower court. However, a party seeking leave to appeal against a decision of court as an interested party must show: –
(a) That a right of appeal has enured him.
(b) Such an applicant not being a party to the decision against which leave to appeal is sought must show that the decision has caused him grief, loss, disadvantage or position.
The facts on record also reveal that the applicant and his party for and on behalf of whom this application is sought were excluded from contesting at the April 19th, 2003 gubernatorial election. Ordinarily in consideration of leave to join him as an appellant, the court has to bear it in mind that an appellant is one who resorts to an appellate court for a review of a decision made against him by a lower court. Padawa v. Jatau (2003) 5 NWLR (Pt. 813) 247. The proceedings in an election petition has no affinity with the steps taken in common law or ordinary civil proceedings, hence the common law principle of joinder of parties may not invariably apply. The common law principle of joinder will only be invoked where the enabling statute is silent as to who is plaintiff or defendant, which is not the position in an election proceedings.
By virtue of sections 131(1) and 133(1) and (2) of the Electoral Act 2002, parties to an election petition and appeals are defined. Section 133(1) provides for persons who may present a petition. It is either one or both of (a) A candidate at an election (b) A political party, which participated at the election.
No other person may do so. Section 131(1) of the Electoral Act 2002 requires that the person elected or returned be joined as a party to an election petition.
Those who may defend a petition in accordance with section 133(2) are:
(a) The person whose election or return is complained of, the respondent
(b) Any of the INEC officials who took part in the conduct of the election. The section is to be read together with section 47 of the First Schedule to the Electoral Act.
All these persons are regarded as statutory respondents.
Consequently the persons who can justifiably be regarded as parties interested in the election petition are petitioners and statutory respondents. In view of this the phrase parties interested cannot be used loosely to cover those who did not contest at the election or those not qualified to file a petition. Those who did not contest or participate at the election or those not qualified to present a petition cannot be regarded as parties interested for the purpose of being granted leave to appeal, as they do not fall into the category of a petitioner or a statutory respondent under the Electoral Act 2002. Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 446, Egolum v. Obasanjo (1999) 7 NWLR (Pt. 611) 355; Obih v. Mbakwe (1984) 1 SCNLR 192.
Interested parties in an election petition or an appeal can further be classified into compulsory parties, necessary parties and indispensable parties.
By a combined reading of section 131(1) and 133(2) of the Electoral Act, the only person who is a compulsory party at an election is the person whose election is being questioned. Necessary parties to an action are those not only interested in the subject matter of the proceedings but also those who in their absence the proceedings could not be fairly dealt with. The questions to be settled cannot be properly settled unless they are parties to the action.
An indispensable party is one without whose presence no adequate judgment can be entered determining the rights of the parties before the court. He is a person who has such an interest in the controversy that the court cannot render a final decree without affecting his interest. He must to be joined because non-joinder prejudices his rights and interests, such that the action cannot continue without him. Abubakar v. INEC (2004) 1 NWLR (Pt. 854) 207; Uzodinma v. Udenwa (2004) 1 NWLR (Pt. 854) 303; Buhari v. Obasanjo (2003) 17 NWLR (Pt. 850) 423; Green v. Green (1987) 3 NWLR (Pt. 61) 480.
Going by the definitions above the applicant does not fall into any of the three groups of parties. In essence he has failed to satisfy this court so as to prompt it to invoke its discretionary jurisdiction in favour of granting his application to be joined in this appeal as a party interested in the matter.
As mentioned by counsel to the 2nd respondent in this application, the applicant’s right as a candidate within the meaning of section 133(1)(a) of the Electoral Act 2002, and bringing a petition as a representative of his party were determined and laid to rest in the election petition CA/E/EPT/85/2003 in the judgment delivered on the 7th of July, 2003 now reported as Okonkwo v. INEC (2004) 1 NWLR (Pt. 854) 242. The applicant has brought this application to be joined in the appeal after this same court had decided that he had no locus standi to institute an election petition, this step to all intents and purpose amounts to an abuse of the process of this court. The applicant prayed this court for extension of time to file his appeal. Equally section 138 of the Electoral Act gave the applicant 21 days to file a notice of appeal against the decision of the tribunal. Section 50 of the First Schedule to the Electoral Act 2002, cannot be invoked here as there is duration to appeal fixed by the Act itself. Having failed to act timeously this court cannot waive that provision to consider his application, and non-compliance is fatal to the application to appeal out of time. No matter how recondite or substantial his ground of appeal on the issue of jurisdiction appears this can only be relevant if he is joined as a party and be allowed to exercise his right of appeal.
In sum the entire application lacks merit and it is accordingly dismissed with a cost of N2,500.00 in favour of each set of respondents. This same order shall discharge a similar application in the appeal No. CA/E/EPT/5B/05.
OGEBE, J.C.A.: I had a preview of the lead ruling of my learned brother Adekeye, J.C.A just delivered and I agree with the reasoning and conclusion.
The application is totally misconceived and a waste of judicial time. Even if the applicant has a legal interest in the appeal (which he has not been able to establish), his failure to bring his application within 21 days allowed to appeal from the judgment of the Election Tribunal provided for in section 138 of the Electoral Act 2002 permanently shuts him out as the time provided therein cannot be extended. Time is of essence in electoral matters and delay in taking prescribed steps can be fatal.
Accordingly, I also dismiss the application with costs of N2,500.00 in favour of each set of respondents.
BADA, J.C.A.: I had a preview of the ruling just delivered by my learned brother Adekeye, J.C.A. She has painstakingly dealt with all the issues canvassed in this application and I am in complete agreement with her reasoning and conclusion.
The applicant, Ifeanyichukwu Okonkwo who is asking for leave of this court to appeal or be joined in this appeal, had earlier filed a petition which was dismissed by the election tribunal and this court. See Okonkwo v. INEC (2004) 1 NWLR (Pt. 854) 242.
He made it one of his grounds in this application that he has full interest in this matter and that he is aggrieved and dissatisfied with the decision of the Governorship and Legislative Houses Election Tribunal, at Awka, Anambra State dated 12/8/2005 even though he was never a party at the tribunal and his name is not on the record of proceedings now before the Court of Appeal.
It must be noted that a party interested in a matter must be a party who has legal interest in the subject matter. Also in an application for leave to appeal as an interested party where the applicant was not a party to the proceedings at the lower court, he has the burden to show that he has an interest in the subject matter in dispute. See Adamu Sidi-Ali v. Yusuf U.B. Takwa (2004) 1 Weekly Reports of Nigeria, Page 180.
The application of the applicant emanated from election petition which is in a class of its own. A close examination of the provisions of sections 133(1) & (2) and 138 of the Electoral Act 2002 and the fact that the applicant did not contest the Governorship election and he was never a party at the tribunal, therefore he is not competent to bring the application.
I am fortified in my view above by the decision in Buhari v. Obasanjo (No.2) (2003) 11 SCNJ Page 40 at 64, (2003) 17 NWLR (Pt. 850) 511 where it was held that it is not enough to show that a person merely participated at the election to come within the provisions of section 133(2) of the Act, he must be shown to have taken part in the conduct of the election.
On the whole, this application before us lacks merit and it is hereby dismissed. I abide by the consequential orders including order as to costs as contained in the leading ruling.
Application dismissed
Appearances
Applicant in personFor Appellant
AND
J. H. C. Okolo, SAN (with him, J. N. Edochie, Esq.)-for the 1st Respondent
Dr. O. Ikpeazu, SAN (with him, Ben Osaka, Esq., T. U. Oguji; E. Etiaba; and E. D. Chukwuma)-for the 2nd Respondent
Dr. A. I. Layonu (with him, O. Akoni, Esq., A. S. Oyinloye, Esq.; B. A. Ogunloye) – for the 3rd RespondentFor Respondent
