INDEPENDENT NATIONAL ELECTORAL COMMISSION v. DEMOCRATIC PEOPLES PARTY & ANOR (2015)

INDEPENDENT NATIONAL ELECTORAL COMMISSION v. DEMOCRATIC PEOPLES PARTY & ANOR

(2015)LCN/7932(CA)

In The Court of Appeal of Nigeria

On Thursday, the 2nd day of July, 2015

CA/B/306A/2014

RATIO

STATUTORY INTERPRETATION; WHETHER THERE IS ANYTHING IN THE PROVISION OF SECTION 109 (1) (g) AND 109 (2) OF THE 1999 CONSTITUTION, WHICH PREVENTS AN ACTION FROM BEING COMMENCED UNTIL AFTER THE SPEAKER HAS ACTED PURSUANT TO SECTION 109(2)

Section 109 (1) (g) and 109 (2) of the 1999 Constitution provide as follows:
“109 (1)    A member of a House of Assembly shall vacate his seat if: –
(g) Being a person whose election to the House of Assembly was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected; provided that his membership of the latter political party is not as a result of a division in the political party of which he was previously a member or of a merger of two or more political parties or factions by one of which he was previously sponsored.”
“(2) The Speaker of the House of Assembly shall give effect to  subsection (1) of this Section, so however that the Speaker or a member shall first present evidence satisfactory to the House that any of the provisions of that subsection has become applicable in respect of that member.”
The pristine question is whether there is anything in the above stipulation which prevents an action from being commenced until after the Speaker has acted pursuant to Section 109 (2).  I hate to think that that represents the legal position.  As ingenious and imaginative as the contention of the Appellant may seem, it does not represent the legal position.  If the framers of the Constitution had intended that no action shall be instituted until after the Speaker has acted pursuant to Section 109(2), it would have been expressly stated.  The Constitution is a living document, it is organic.  In construing it, undue regard must not be paid to mere technical rules otherwise the objects of its provisions as well as the intentions of the framers of the Constitution would be frustrated.  The courts in interpreting the Constitution have to resort to the cardinal rules of interpretation so as to ascertain the intention of the lawmakers from the words used by them, and to ensure that the object and true intent of the Constitution and Statutes are preserved.  See BRONIK MOTORS LTD vs. WEMA BANK LTD (1983) LPELR (808) 1 at 44 -45 and EGHAREVBA vs. ERIBO (2010) 9 NWLR (PT 1199) 411.
In A -G OGUN STATE vs. ABERUAGBA (1985) LPELR (3164) 1 at 28, Bello, JSC (as he then was) stated as follows:
“The fundamental principle is that such interpretation as would serve the interest of the Constitution and would best carry out its object and purpose should be preferred.  To achieve this goal, its relevant provisions must be read together and not disjoint; where the words of any section are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with other provisions of the Constitution and effect must be given to those provisions without any recourse to any other consideration; and where the Constitution has used an expression in the wider or in the narrower sense the Court should always lean where the justice of the case so demands to the broader interpretation unless there is something in the content or rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose.  In other words, where the provisions of the Constitution are capable of two meanings the Court must choose the meaning that would give force and effect to the Constitution and promote its purpose.”
The provision of Section 109 (2) is clear and unambiguous.  It must therefore be given its ordinary meaning.  There is nothing therein remotely suggestive that it is only after the Speaker has acted that recourse can be had to the courts.  Indeed, it would appear that the decision of a court in exercise of its judicial powers under Section 6 (6) (b) of the 1999 Constitution would afford such evidence satisfactory to the House of Assembly on the basis of which the Speaker shall give effect to Section 109 (1) (g) of the Constitution. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

STATUTORY INTERPRETATION: THE SCOPE OF THE POWER OF THE COURT ACCORDING TO THE CONSTITUTION, WHETHER SECTION 199 (1) OF THE CONSTITUTION REQUIRE THE SPEAKER TO BE A PARTY TO AN ACTION BROUGHT FOR THE PURPOSE OF DETERMINING WHETHER THERE HAS BEEN AN INFRACTION OF SECTION 109 (1) OF THE CONSTITUTION AND NON-JOINDER OF NECESSARY PARTIES WOULD DEFEAT AN ACTION, OTHERWISE PROPERLY CONSTITUTED.

On the contention that the Speaker and Delta State House of Assembly were necessary parties who had not been joined, Section 6(6) (b) of the 1999 Constitution provides that the judicial powers of the court extends to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person: BAKARE vs. A -G FEDERATION (1990) LPELR (707) 1 at 15.  Section 109 (2) of the 1999 Constitution, undoubtedly gives the speaker the power to give effect to the provision of Section 109 (1), but it does not require the Speaker to be a party to an action brought for the purpose of determining whether there has been an infraction of Section 109 (1) of the Constitution.  As already stated, the decision of a court on whether there has been an infraction would afford evidence on the basis of which the House of Assembly will be satisfied that the provisions of Section 109 (1) of the Constitution have become applicable in respect of any member.  It has to be remembered that the judicial powers of the Federation have been vested in the courts created under Section 6 of the Constitution and by the provisions of Section 287 of the Constitution, the decision of a court shall be enforced in any part of the country by all authorities and persons.  See DINGYADI vs. INEC (2011) LPELR (950) 1 at 56 -57.  The concomitance is that whether the Speaker or the Delta State House of Assembly have been made parties or not and in so far as no allegations have been made against them in the action, they are obligated, authorised and mandated to give effect to any decision of a court in exercise of its judicial powers.  There is nothing in Section 109 of the Constitution which stipulates that the Speaker of the House of Assembly or the House of Assembly itself must be made a party in an action to determine if the seat of a member of a House of Assembly has become vacant.  The issue of lack of fair hearing would not arise since no allegations have been made requiring the Speaker or the House of Assembly to be heard.  Order 9 Rule 14 of the Federal High Court (Civil Procedure) Rules stipulates that no proceedings shall be defeated by reason of misjoinder or non-joinder of parties.  There is a plethora of decisions to the effect that non-joinder of a person would not defeat the cause of action.  See CROSS RIVER STATE NEWSPAPER CORPORATION vs. ONI (1995) LPELR (898) 1 at 31 and IFEANYI CHUKWU (OSONDU) LTD vs. SOLEH BONEH LTD (2000) LPELR 1 at 64.  In NWANNA vs. A -G FEDERATION (2010) LPELR (9047) 1 at 13 -14, this Court per Hussein Mukhtar, JCA stated:
“However, the non-joinder of a necessary party will not ground a dismissal of the action as the Lower Court did in this case nor does it derobe the court of jurisdiction to hear the case as held by the learned trial Judge …  In this case, however, the mere failure to join the Inspector General of Police does not render the action incompetent as erroneously held by the court below.  This position of the law is aptly provided under Order 12 rule 5 of the Federal High Court (Civil Procedure) Rules 2000 (supra).  In the case of DAPIALONG vs. LALONG (2007) 5 NWLR (PT 1026) 199 at 212 E-F this court per Akaahs, JCA held thus:
‘An action cannot be rendered incompetent simply because all the necessary parties have not been joined in the suit.  It suffices if the parties before the court are competent parties and the cause of action, if substantiated by the plaintiff entitles him to a remedy against the defendant.  In the instant case, the reliefs sought by the respondents could be determined between the parties to the suit without joinder of other parties.   In the circumstance, the trial court was right when it held that the parties to the suit were the necessary parties, and assumed jurisdiction to determine the suit.’
The Supreme Court had similarly held in the case of BABA YEJU vs. ASHAMU (1998) 9 NWLR (PT 567) 546 at 557E-F per Ogundare, JSC (of blessed memory) as follows:
‘By virtue of Order 3 rule 19 of the High Court of Lagos State (Civil Procedure) Rules 1973 (applicable to this case) non-joinder of necessary parties would not defeat an action, otherwise properly constituted.'”
I agree entirely with the legal position as eloquently stated by my learned brother.  The non-joinder of the Speaker of the Delta State House of Assembly does not make the action incompetent.  The reliefs sought by the 1st Respondent at the Lower Court could be determined to finality between the parties on record without the joinder of the Speaker since by Section 287 of the 1999 Constitution the Speaker is enjoined to give effect to the decisions of the Courts.  Furthermore, Order 9 Rule 14 of the Federal High Court (Civil Procedure) Rules expressly stipulates that no proceedings shall be defeated by reason of misjoinder or non-joinder of parties. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

PRACTICE AND PROCEDURE: WHETHER A PLAINTIFF CAN BE COMPELLED TO PROCEED AGAINST A PARTY HE HAS NO DESIRE TO SUE

It is also the Law that a Plaintiff cannot be compelled to proceed against a party he has no desire to sue. See ALHAJI IBRAHIM ATANYI & ORS vs. MILITARY GOVERNOR OF PLATEAU STATE (2002) FWLR (Pt. 89) 1168 C.A. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

Between

INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Appellant(s)

AND

1. DEMOCRATIC PEOPLES PARTY
2. HON. EFE GODFREY OFOBRUKU Respondent(s)

UGOCHUKWU ANTHONY OGAKWU, J.C.A.(Delivering the Leading Judgment): The 2nd Respondent in this appeal, Hon. Efe Godfrey Ofobruku represents Uvwie State Constituency of Delta State in the Delta State House of Assembly. He was sponsored by and elected on the platform of the 1st Respondent herein, the Democratic Peoples Party. At the proceedings of the Delta State House of Assembly on 6th March, 2012, the Speaker announced to the House that the 2nd Respondent had decamped to the Peoples Democratic Party (PDP).

The 1st Respondent found the decamping irksome, especially as it maintained that there was no division within its ranks and that it had not merged with any other political party. It consequently headed to the Federal High Court where it instituted an Originating Summons in Suit No. FHC/ASB/CS/81/2012, which suit was later renumbered as FHC/WR/CS/102/2013. It sought for the determination of the following question:

“Whether or not the 1st Defendant herein has not LOST HIS LEGISLATIVE SEAT IN THE DELTA STATE HOUSE OF ASSEMBLY under and by virtue of the provisions of Section 109 of the Constitution of the Federal Republic of Nigeria 1999 as a result of the fact that the Record of Proceedings of that State House of Assembly (Hansard) for Tuesday 6th March, 2012 established beyond doubt that the 1st Defendant decamped from the Political Party on whose platform he was elected i.e. the Democratic Peoples Party (D.P.P.) to another political party (the Peoples Democratic Party (P.D.P.) on whose platform he was not elected.”

Upon the determination of the said question, the 1st Respondent sought the following reliefs:

“1. A declaration that the 1st Defendant Efe Godfrey Ofobruku elected to the Delta State House of Assembly to represent Uvwie State Constituency lost his seat in the House (Delta State House of Assembly) on Tuesday 6th March, 2012 having decamped from the Political Party under whose platform he was elected to another political party contrary to Section 109 of the 1999 Constitution of the Federal Republic of Nigeria as amended.

2. A declaration that the legislative seat of the Uvwie State House of Assembly representative is now vacant, Efe Godfrey Ofobruku having lost the right to sit therein under and by virtue of the provision of Section 109 of the 1999 Constitution of the Federal Republic of Nigeria, as amended.

3. An order that fresh election be conducted by the 2nd Defendant to fill the vacant seat of the member representing Uvwie State Constituency of the Delta State House of Assembly for the un-expired term of the 1st Defendant.

4. Any other order or orders or further or other order or orders as this Honourable Court may make, having regard to the circumstances and justice of this case.”

The Appellant herein, who was the 2nd Respondent at the Lower Court challenged the competence of the action. It filed a notice of preliminary objection wherein it urged the Lower Court to strike out the action or strike out its name upon the grounds of want of jurisdiction, incompetence of the action, absence and/or non-disclosure of any cause of action against it, misjoinder, non-joinder and that the action was an abuse of process, oppressive, embarrassing, premature, hasty, vexatious and frivolous. After plenary argument on the preliminary objection the Lower Court dismissed the same on 27th May, 2014. The Ruling of the Lower Court is at pages 162 -180 of the Records. Being dissatisfied, the Appellant appealed on 9th June, 2014. The notice of appeal is at pages 181 -185 of the Records.

The Records of Appeal having been compiled and transmitted on 28th August, 2014, the Appellant filed its brief of argument on 9th September, 2014. The Appellant distilled a sole issue for determination as follows:

“Whether having regard to the clear provisions of S.109 (1) (g) and S. 109 (2) Constitution of the Federal Republic of Nigeria 1999 (as amended), the parties as presently constituted and the procedure adopted, the plaintiff’s suit is competent and maintainable against the defendant(s).”

The Respondents did not file any briefs of argument. At the hearing of the appeal, J.H. Igbikiberesima Esq., learned Counsel for the Appellant adopted and relied on the Appellant’s Brief and he urged the court to allow the appeal and strike out the action for want of competence.

S. O. Oluku, Esq., learned Counsel for the 1st Respondent, informed the court that even though he did not file a Respondent’s Brief, that the Appeal was on all fours with the sister appeal in Appeal No. CA/B/306/2014: the judgment of which has also been delivered today. On his part, Ikhide Ehighelua, Esq., counsel for the 2nd Respondent conceded the appeal.

The issue for determination formulated by the Appellant is apt and it is on the basis of the said issue that I will consider and resolve this appeal.

SUBMISSIONS OF THE APPELLANT’S COUNSEL

The Appellant contends that where a legal remedy is provided or a legal line of action prescribed by statute for the determination of an issue, all the remedies provided must first be exhausted before recourse to court. It was posited that where the event provided for in Section 109 (1) (g) of the 1999 Constitution occurs and the member does not vacate his seat in the House of Assembly, the remedy is set out in Section 109 (2) of the Constitution, which is for the Speaker of the House to effect. It was submitted that the 1st Respondent was too hasty in filing the action in court when the prescription of Section 109 (2) of the Constitution had not been exhausted. The action it was contended was therefore incompetent, unduly hasty, premature and not maintainable. The cases of ARIBISALA vs. OGUNYEMI (2005) 6 NWLR (PT 921) 212 at 231G -232B and DELTA STATE HOUSE OF ASSEMBLY vs. DEMOCRATIC PEOPLES PARTY Appeal No. CA/B/18/2010 (unreported) delivered on 29th April, 2014 were relied upon.

The Appellant argues that by the provisions of Section 109 (1) (g) and 109 (2) of the 1999 Constitution, the Speaker and Delta State House of Assembly are statutorily designated necessary parties for the enforcement of the provisions of the Section since they will be affected by the exercise of the powers of enforcement of the said provisions. It was submitted that since they were not joined as parties to the action, the action was improperly constituted and therefore incompetent. The provision of Order 9 Rule 14 of the Federal High Court Rules was said to be unconstitutional, null and void to the extent that it promotes necessary parties not being given a fair hearing. The cases of OLORIEDE vs. OYEBI (1984) 1 SCNLR (PT 1) 390 and OKONTA vs. PHILLIPS (2010) 18 NWLR (PT 1225) 320 at 326 were cited in support.

The further contention of the Appellant is that no cause of action is disclosed against it to warrant its being made a party to the suit as no allegations are made against. It was maintained that the Appellant had no role to play in the determination of whether the provisions of Section 109 (1) & Section 109 (2) of the Constitution had been breached by the 2nd Respondent. It was asserted that the matter before the trial court can be effectually and completely determined without its involvement. It was argued that the duties of the Appellant were statutory and that it could conduct its activities without any dictate from any institution and that this was so, notwithstanding that a relief was claimed for an order to compel it to conduct a fresh election. The Appellant maintained that the Lower Court erred by failing to strike out its name. The case of OTUYA vs. GWATTO (1977) NCAR 606 at 615 -616 was relied upon.

RESOLUTION OF THE ISSUE

The submissions of the Appellant are predicated on a ternary platform, id est, that the constitutional procedure had not been exhausted before the 1st Respondent commenced the action, thus making the action incompetent; secondly that the Speaker and Delta State House of Assembly were necessary parties who had not been joined and; thirdly, that no cause of action is disclosed against it and so it should not have been joined as party.

The Appellant also contended that no cause of action is disclosed against it and that it should not have been joined as a party. The gravamen of the action is whether a seat in the Delta State House of Assembly has become vacant. The elections into the legislative houses are conducted by the Appellant. Where the action succeeds and the seat in the House of Assembly is declared to be vacant, there will be a need for an election to be conducted by the Appellant to fill the vacancy. Among the reliefs claimed is: “An order that fresh election be conducted by the 2nd Defendant (Appellant herein) to fill the vacant seat of the member representing Uvwie State Constituency…” It is apparent that a relief has been claimed against the Appellant. Notwithstanding how it has been conjectured that no allegations have been made against the Appellant, the important consideration is whether a court can make an order against a non-party. It seems that our case law is very well settled in that regard and replete with decisions of superior courts of record that an order cannot be made against a person who has not been made a party in an action. See EKPOKE vs. USILO (1978) LPELR (1097) 1 at 21.

In any event in the oft-cited case of GREEN vs. GREEN (1987) LPELR (1338) 1, parties to an action were classified into three, namely, proper parties, desirable parties and necessary parties. In making the distinction between the different classifications of parties, Oputa, JSC (of blessed memory) stated at page 20 that “Proper parties are those who, though not interested in the plaintiffs claim, are made parties for some good reasons …. Desirable (parties) are those who may 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 would not be fairly dealt with.”

It seems pretty obvious that the fact that a relief has been claimed against the Appellant affords a good reason why the Appellant should be made a party to the action, even though it may not be interested in the claims of the 1st Respondent as it relates to whether the Uvwie State Constituency Seat of Delta State House of Assembly has become vacant consequent upon the decamping of the 2nd Respondent to the Peoples Democratic Party. The Appellant is therefore clearly a proper party and was rightly sued as the 2nd Respondent before the Lower Court. Be that as it may, I reiterate that even if there had been a misjoinder, it would not defeat the action. The Lower Court was therefore on terra firma when it declined to strike out the name of the Appellant as it was a proper party to the action.

It seems that we have arrived the terminus for this judgment. The issue for determination is resolved against the Appellant. The 1st Respondent’s action at the Lower Court is competent and maintainable. The appeal lacks merit. It accordingly fails and it is hereby dismissed. The costs of N50, 000.00 is awarded in favour of the 1st Respondent. The case is remitted to the Lower Court for hearing and determination on the merits.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother UGOCHUKWU ANTHONY OGAKWU J.C.A. I am in complete agreement with my learned brother that since relief (3) prayer to compel the Appellant to conduct fresh elections into the seat that the 1st Respondent wants to be declared vacant, afortiori, the Appellant is a necessary party to this appeal. This would enable that institution to be bound if need be by the orders made by the court. It is trite that when a relief is sought against a person in any judicial proceeding such person is considered a desirable and necessary party.

The Appellant’s complaint is baseless. Appeal is dismissed. I abide by all the orders in the lead judgment.

PHILOMENA MBUA EKPE, J.C.A.: I had a preview of the judgment of my learned brother U. A. OGAKWU, JCA just rendered. I am in total agreement with my Lord on the well researched judgment. I agree that this appeal lacks merit, it fails and is hereby dismissed.

I abide by my Lord’s order as to costs. The case is to be remitted to the Lower Court for hearing and determination.

Appearances

J. H. Igbikiberesima, Esq.For Appellant

AND

S. O. Oluku, Esq. for the 1st Respondent.
Ikhide Ehighelua, Esq. (with A.E. Alagun, Esq.) for the 2nd Respondent.For Respondent