PEOPLES DEMOCRATIC PARTY & ANOR. V. KINGSLEY NONYE PHILIPS & ANOR.
(2010)LCN/3780(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 12th day of May, 2010
CA/A/147/07
RATIO
ACTION: WHAT IS A DECLARATORY ACTION
A declaratory action is an invitation to the Court to make a pronouncement as to the state of the law with regard to the particular circumstance or situation. Indeed a declaratory relief merely declares the rights of the parties and is dormant, beyond that it has no force of execution.
See:-WAEC vs. Oshionebo (2006) 12 NWLR Part 994 Pg. 264 at 274 Paragraphs F-G. PER JIMI OLUKAYODE BADA, J.C.A
COURT: ATTITUDE OF THE COURT TOWARDS AN ACADEMIC SUIT
In Plateau State vs. A.G. Federation (2006) 3 NWLR Part 967 Page 346 at 361 ratio 2 especially Page 419 – 420 Paragraphs F – A.
TOBI, J.S.C stated as follows on what amounts to academic issue:-
“A suit is academic where it is merely theoretical and of no practical utilitarian value to the Plaintiff even if Judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity… ” PER JIMI OLUKAYODE BADA, J.C.A
FAIR HEARING: WHAT AMOUNTS TO A HEARING BEING FAIR
A hearing can only be said to be fair when all the parties to a dispute are given a hearing or opportunity of being heard.
See:- Urhobo vs. Oteri (1992) 2 NWLR Part 589 Page 147 at 151. PER JIMI OLUKAYODE BADA, J.C.A
APPEAL: PURPOSE OF THE RESPONDENTS BRIEF OF ARGUMENT
The Purpose of a Respondent’s brief of argument is to answer all issues raised in the Appellant’s brief of argument and nothing more. It is only where there is a Cross Appeal from the particular Respondent that the Respondent/Cross Appellant can attack the Judgment appealed against.
The role of a Respondent who did not appeal or Cross Appeal nor filed a Respondent’s Notice is to support the Judgment appealed against or at best refrain from attacking the Judgment. , where the Judgment is unsupportable, the appropriate thing for the Respondent to do in such a situation is to Cross-Appeal before filing a brief of argument to attack the Judgment.
In the circumstance, the 2nd Respondent’s brief of argument lacked a foundation upon which it could stand and it is hereby discountenanced. See the following cases:-
Okoro vs. Equoh (2006) 15 NWLR Part 1001 Page 1; UTB Nig. Ltd vs. Ajagbule (2006) 2 NWLR Part 965 Page 447;- Oceanic Bank International, Nigeria Ltd vs. Miss Edith Omenazu (2005) Vol. 23 WRN Page 126;- Obasanjo vs. Buhari (2003) 17 NWLR Part 850 Page 510 at 554. PER JIMI OLUKAYODE BADA, J.C.A
ACTION: PARTIES TO AN ACTION; WHAT IS THE POSITION OF THE LAW GOVERNING JOINDER OF PARTIES
The law governing joinder of parties makes it explicitly clear that except where there are questions in proceedings, which cannot be effectively and completely settled without the presence of a party only then can such a party be joined in an action. Apart from that, the 1st Respondent did not have any cause of action or reliefs against the 2nd ppellant to have warranted joining him in the suit.
In Ajayi vs. Jolayemi (2001) 10 NWLR Part 722 Page 516 at 537-538. The Supreme Court Held thus:-
“The principle guiding joinder of parties as provided in our various rules of Court has received judicial interpretation in our Courts and Courts of other common law jurisdiction. The purpose of the rules is to allow a plaintiff to proceed in the same action against whom he alleges to be entitled to any relief whether his claim is brought against the defendants against whom he alleges to be entitled to any relief whether his claim is brought against the defendants jointly, severally or in the alternative… It is improper to join as co-defendants persons against whom the plaintiff has no cause of action and against whom he has made no claim…”.
Also in Chief Emmanuel Bello vs. Independent National Electoral Commission & 2 Others (Unreported) decision of the Supreme Court Suit No. S.C. 330/2008 delivered on 5/3/2010 it was held among others at page 23 that:-
“…The 2nd Respondent was indeed not a party in the case. Not being a party in the action of the Appellant as framed in the Amended Originating Summons, there was no obligation on the part of the trial Court to have put the 2nd Respondent on notice. Consequently, failure to put the 2nd Respondent which was not a defendant in the action on notice was not fatal to the case of the Appellant at the trial Court to the extent of depriving that Court of its jurisdiction in the case, not to talk of resulting in rendering its decision in the case, as nullity…For the same reason, the accusation of the 2nd Respondent that the trial Court denied its fundamental Right of fair hearing in an action in which it was not a party, has no basis at all in law.” PER JIMI OLUKAYODE BADA, J.C.A
Justice
MARY U. PETER-ODILI Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
Between
Justice
1. PEOPLES DEMOCRATIC PARTY
2. HON. MARTIN OKONTAAppellant(s)
AND
1. KINGSLEY NONYE PHILIPS
2. INDEPENDENT NATIONAL ELECTORAL COMMISSIONRespondent(
JIMI OLUKAYODE BADA, J.C.A (Delivering the Leading Judgment): This is an appeal against the Judgment of the Federal High Court Abuja in Suit No:FHC/ABJ/CS/220/07 which was delivered on the 10th day of May, 2007.
The action was commenced by Originating Summons Procedure at the lower Court by the Plaintiff/1st Respondent/Cross Appellant (hereinafter called the 1st Respondent) against the Appellant/Respondent/Cross Respondent (hereinafter called the Appellant) and 2nd Respondent/Cross Respondent.
The reliefs sought by the 1st Respondent as adumbrated in the Originating Summons are:-
“(1) A declaration that there are no cogent and verifiable reasons for the Defendants to challenge, substitute or entertain the change of name of the Plaintiff as the candidate of the Peoples Democratic Party (PDP) for the Ika South Constituency of the Delta State House of Assembly Election due in April 2007.
(2) A declaration that the Defendants cannot change or substitute the name of the Plaintiff as the 1st Defendant’s candidate for the Ika South Constituency of the Delta State House of Assembly election. The time for so doing having expired.
(3) A declaration that it is unconstitutional, illegal and unlawful for the Defendants to change the name of the Plaintiff as the Ika South Constituency of the Delta State House of Assembly candidate of the 1st Defendant after the Plaintiff had been duly nominated by the 1st Defendant as its candidate and after the 2nd Defendant has accepted the nomination and published the name and particulars of the Plaintiff in accordance with Section 32(3) of the Electoral Act until the High Court disqualifies the Plaintiff and or until cogent and verifiable reasons are given to the 2nd Defendant by whosoever desires to make the change.
(4) An Order of Injunction restraining the 2nd Defendant, their servant, officers, assigns, privies or agents from carrying into effect or doing anything whatsoever amounting to changing or substituting the Plaintiff’s name as the 1st Defendant’s candidate for Ika South Constituency of the Delta State House of Assembly election due in April 2007 as same is illegal, null void and of no effect whatsoever.
(5) An Order of Injunction restraining the Defendants, their privies, assigns, servants, officers or agents from changing or substituting the Plaintiffs name for the April 2007, Ika South Constituency of the Delta State House of Assembly Election as the time for so doing has expired.
(6) An Order of Perpetual Injunction restraining the Defendants from changing or substituting the name of the Plaintiff as the 1st Defendant’s candidate for the Ika South Constituency of the House of Assembly Election due in April, 2007 unless and until a Court order is made disqualifying the Plaintiff and or until cogent and verifiable reasons are given as required under Section 34(2) of the Electoral Act 2006.”
At the conclusion of hearing after the Election in issue had been concluded, the learned trial Judge granted 3 declaratory reliefs i.e. Reliefs 1, 2 and 3 while she refused reliefs 4, 5 and 6.
The Appellants dissatisfied with the said Judgment now appealed to this Court.
The learned Counsel for the Appellant formulated two issues for determination set out as follows:-
“(1) Whether having reprobated Reliefs 4, 5 and 6 of the Plaintiff’s Originating Summons the trial Judge could approbate the Plaintiffs Originating Summons by entering Judgment for the Plaintiff having granted the Declaratory Reliefs sought by the Plaintiff as per his Originating Summons.
(2) Whether the trial Judge could preserve the ‘Res’ of the suit having not called the parties to address it upon the issue of expulsion of the 1st Plaintiff by the 1st Defendant.”
The learned Counsel for the 1st Respondent also formulated two issues for determination set out as follows:-
“(1) Whether or not the learned trial Judge was right in granting a relief 1, 2 and 3 while refusing relief 4, 5 and 6.
(2) Whether or not the learned trial Judge was right in disregarding the purported letter of expulsion in order to preserve the ‘Res’ ”.
The learned Counsel for the 2nd Respondent formulated a lone issue for determination set out as follows:-
“Whether the learned trial Judge rightly granted the declaratory reliefs.”
At the hearing, learned Counsel for the Appellant referred to the Appellant’s brief of argument filed on 19/6/07. He adopted the said brief of argument in urging that the appeal be allowed.
The learned Counsel for the 1st Respondent on the other hand referred to the 1st Respondent’s brief of argument filed on 6/7/2009. He adopted the said brief in urging that the appeal should be dismissed.
The learned Counsel for the 2nd Respondent also referred to the 2nd Respondent’s brief of argument filed on 26/10/09 but deemed filed on 30/11/09. He adopted the said brief of argument in urging that the appeal be allowed.
I have carefully examined the issues formulated for determination on behalf of the parties in this appeal and it is my view that the issues set out on behalf of the 1st Respondent are considered relevant in the determination of this appeal.
ISSUE 1
Whether or not the learned trial Judge was right in granting reliefs 1, 2, and 3 while refusing reliefs 4, 5 and 6.
The learned Counsel for the Appellant stated that the Plaintiff did not seek for ancillary orders to reliefs 1, 2 and 3 which are declaratory or Reliefs 4, 5, and 6 which are injunctive in nature. He contended that Reliefs 4, 5 and 6 have been overtaken by events and he submitted that in so far as that is the case, reliefs 1, 2, and 3 have become academic.
He referred to the case of:- Fatunbi vs. Olanloye (2004) 6 SCNJ Page 34 at 47.
He submitted that the trial Court ought to decide only live issues and not answer moot or academic questions. He relied on the following cases:-
Atiku Abubakar vs. Att. Gen, of the Federation (2007) 3 NWLR Part 1022 Page 601 at 649; Onyereye vs. Olugbesan (1972) 4 S.C. Page 244; Bakare vs. ACB (1989) 3 NWLR Part 26 Page 47;
Dr Umanah vs. Obong Attah (2006) 9 SCNJ Page 75 at 84; Balonwu vs. Obi (2007) 5 NWLR Part 1028 Page 488 at 534 – 535.
The learned Counsel for the 1st Respondent in his own submission stated that the 1st Respondent approached the Court to declare his rights in reliefs 1 to 6 of his Originating Summons.
He submitted that a party need not seek any ancillary or consequential relief when seeking a declaratory relief. He relied on the following cases of:-
Bagudu vs. FRN (2004) 1 NWLR Part 853 Page 182 at 189; Ekwuno vs. Ifejika (1960) SCNLR Page 320.
He submitted that the declaration of the 1st Respondent’s right by the trial Court is not an academic issue. He went further that the Court made declaration in respect of live issues which revolved around the question whether or not the Appellant and the 2nd Respondent could substitute the name of the 1st Respondent.
He finally urged that this issue be resolved in favour of the 1st Respondent.
The 2nd Respondent’s Counsel in his own submission stated that declaratory Judgments are unenforceable in nature as they merely declare the rights of the parties and do not command positively. He relied on the case of:- Ogunlade vs. Adeleye (1992) 10 SCNJ Page 58 at 66.
He submitted that the trial Court having found that the injunctive reliefs i.e. relief 4, 5 and 6 were overtaken by events and the granting of reliefs 1, 2 and 3 was merely academic. He went further that the trial Court ought not to have granted the declaratory reliefs as it is settled that the Court will not render advisory opinion nor treat a matter which is academic.
He relied on the following cases:- Akeredolu vs. Akinyemi (1986) 2 NWLR Part 25 Page 710 at 725; Ekperokun vs. University of Lagos (1986) 4 NWLR Part 34 Page 164 at 177.
Learned Counsel for the 2nd Respondent therefore urged that this appeal be allowed.
In order to have a full grasp of the issues in this appeal it would be necessary to look at the background facts of this case.
The 1st Respondent who was the Plaintiff as the lower Court and a member of the Peoples Democratic Party contested the parties primaries for a seat in the Delta State House of Assembly and won. The Appellant submitted the name of the 1st Respondent to the 2nd Respondent for registration as Appellant’s candidate for the election for the seat. But after the expiration of time for substitution of names as prescribed by the law, the Appellant requested the 2nd Respondent to substitute the name of the 1st Respondent.
The 1st Respondent consequently, commenced an action by Originating Summons at the Federal High Court, Abuja against the Appellant and the 2nd Respondent.
At the conclusion of hearing the learned trial Judge held that the Plaintiff/1st Respondent was the original nominee of the party till 27/3/07 after substitution had closed. And she granted relief Nos. 1, 2 and 3 and refused reliefs 4, 5 and 6.
The learned Counsel for the Appellant contended that the relief Nos. 4, 5 and 6 had been overtaken by events and that in so far as that is the case reliefs Nos. 1, 2 and 3 have become academic.
It is true that reliefs No. 1, 2, 3 are declaratory and relief No. 4, 5 and 6 are injunctive in nature.
A declaratory action is an invitation to the Court to make a pronouncement as to the state of the law with regard to the particular circumstance or situation. Indeed a declaratory relief merely declares the rights of the parties and is dormant, beyond that it has no force of execution.
See:-WAEC vs. Oshionebo (2006) 12 NWLR Part 994 Pg. 264 at 274 Paragraphs F-G.
In this case under consideration, the lower Court made declarations in respect of live issues which revolved around the question whether or not the Appellant and the 2nd Respondent could substitute the name of the 1st Respondent. It is my view that the declaration of the 1st Respondent’s right by the lower Court is not an academic issue.
In Plateau State vs. A.G. Federation (2006) 3 NWLR Part 967 Page 346 at 361 ratio 2 especially Page 419 – 420 Paragraphs F – A.
TOBI, J.S.C stated as follows on what amounts to academic issue:-
“A suit is academic where it is merely theoretical and of no practical utilitarian value to the Plaintiff even if Judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity… ”
In my humble view the illegal and wrongful substitution of the 1st Respondent’s name by the Appellant and the 2nd Respondent cannot be classified as academic issue. In effect reliefs No. 1, 2 and 3 is not academic and cannot become academic because relief No 4, 5 and 6 cannot be overtaken by any event.
A suit does not necessarily become spent merely because it was heard after the act or conduct which gave rise to the action.
See-Agbakoba vs. INEC (2008) 18 NWLR Part 1119 Page 489.
After granting relief No. 1,2 and 3, the learned trial Judge ought to have granted reliefs No. 4, 5 and 6 in the Originating Summons. See the following cases:-
– Amaechi vs. INEC (2008) 5 NWLR Part 1080 Page 227; Ugwu vs. Ararume (2007) 12 NWLR Part 1048 Page 367.
In view of the foregoing, this issue is resolved in favour of the 1st Respondent.
ISSUE 2
“Whether or not the learned trial Judge was right in disregarding the purported letter of expulsion in order to preserve the Res”.
The learned Counsel for the Appellant stated that the trial Judge held that the suit between the parties was before her when a Letter of Expulsion of the Plaintiff was written.
He submitted that the learned trial Judge raised the issue of expulsion of the Plaintiff from the Peoples Democratic Party (PDP) without affording the parties or their Counsel the opportunity of addressing the Court on the issue so raised so as to ensure that rules of fair hearing are adhered to for the purpose of doing Justice to the parties.
It was also submitted on behalf of the Appellant that the issue of expulsion of a person from a political party is not self-help as envisaged in the case of Governor of Lagos State vs. Ojukwu (1985) 2 NWLR Part 10 Page 806.
He went further that where the lower Court did not give the parties opportunity to address it on an issue raised suo motu the failure constitutes a serious error. He referred to the case of:-
Dalek Nig. Ltd vs. OMPADEC (20071 NWLR Part 1033 Page 402 at 432.
He finally urged that his appeal be allowed.
The learned Counsel for the 1st Respondent in his own submission stated that Ground 2 of the Appellant is incompetent because it raises a complaint against the Judgment of the Lower Court which he said was not covered by the Notice of Appeal.
It is true that any complaint that does not relate to the Judgment appealed against cannot be relevant in the appeal and therefore be incompetent. But in this case, the contention that Ground 2 is incompetent cannot be correct because the notice of appeal was based on the Judgment of the Lower Court.
It was also contended that the trial Judge raised the issue of expulsion of the Plaintiff without affording parties or their Counsel the opportunity of addressing the Court on the issues so raised. The contention of the learned Counsel for the Appellant in that respect cannot be correct in that a perusal of the record would show that it was the Appellant who filed further and better affidavit at the Lower Court wherein letter of expulsion was exhibited. See Page 60-62 of the record. Furthermore, a perusal of the record of appeal in particular pages 90-97, 121 and 141 would reveal that the parties to this case filed written addresses in respect of all issues raised at the Lower Court before Judgment was delivered.
It is therefore my view that the parties were given hearing on the issue of the expulsion.
A hearing can only be said to be fair when all the parties to a dispute are given a hearing or opportunity of being heard.
See:- Urhobo vs. Oteri (1992) 2 NWLR Part 589 Page 147 at 151.
In the instant case, the expulsion letter which was written while the case was pending, was written with a view to presenting the Court with a fait accompli and defeat the course of Justice.
In the case of Gwar vs. Adole (2003) 3 NWLR Part 808 Page 516 at 531, the Court held thus:-
“Section 91(3) of the Evidence Act provides for a situation in which documents are made inadmissible where the maker, being an interested person, prepared same when proceedings were pending or anticipated. The Section was enacted to render inadmissible a document prepared by an interested person in order to defeat through its clear wordings the course of Justice. Such document is rendered inadmissible when the maker knew about the pendency of the suit to which the document is made and even where he does not know about the existence of a suit, he anticipated that a dispute might arise. The wisdom in having the section is that a person interested might easily be tempted to depart from telling the truth by reason of the interest he has”.
Consequent upon the foregoing, it is my view that the learned trial Judge was right to have disregarded the letter of expulsion when he held that the letter was written subjudice and had the effect of taking the Res out of the Court. See the case of:- Ojukwu vs. Military Governor of Lagos State (Supra) Pages 824 – 825 Paragraphs E – A.
I cannot conclude this Judgment without commenting on the attitude of the 2nd Respondent in this Appeal.
The 2nd Respondent has filed a Respondent’s brief of argument in which it contended that the learned trial Judge wrongly granted the declaratory reliefs and it urged that the Appeal be allowed.
It should be noted that it is the practice that a Respondent who did not appeal against the Judgment in issue cannot attack the Judgment in its Respondent’s brief of argument.
The Purpose of a Respondent’s brief of argument is to answer all issues raised in the Appellant’s brief of argument and nothing more. It is only where there is a Cross Appeal from the particular Respondent that the Respondent/Cross Appellant can attack the Judgment appealed against.
The role of a Respondent who did not appeal or Cross Appeal nor filed a Respondent’s Notice is to support the Judgment appealed against or at best refrain from attacking the Judgment. , where the Judgment is unsupportable, the appropriate thing for the Respondent to do in such a situation is to Cross-Appeal before filing a brief of argument to attack the Judgment.
In the circumstance, the 2nd Respondent’s brief of argument lacked a foundation upon which it could stand and it is hereby discountenanced. See the following cases:-
Okoro vs. Equoh (2006) 15 NWLR Part 1001 Page 1; UTB Nig. Ltd vs. Ajagbule (2006) 2 NWLR Part 965 Page 447;- Oceanic Bank International, Nigeria Ltd vs. Miss Edith Omenazu (2005) Vol. 23 WRN Page 126;- Obasanjo vs. Buhari (2003) 17 NWLR Part 850 Page 510 at 554.
In view of the foregoing, this issue is also resolved in favour of the 1st Respondent.
In the final analysis, it is my view that this appeal lacks merit and it is hereby dismissed. I make no order as to costs.
2nd APPELLANT’S APPEAL
This is also an appeal against the Judgment of the Federal High Court Abuja delivered on the 10th day of May, 2007.
The action was commenced by an Originating Summons Procedure by the Plaintiff/1st Respondent Kingsley Nonye Philips against the Peoples Democratic Party and Independent National Electoral Commission.
He sought for the following reliefs: –
“(1) A declaration that there are no cogent and verifiable reasons for the Defendants to challenge, substitute or entertain the change of name of the Plaintiff as the candidate of the Peoples Democratic Party (PDP) for the Ika South Constituency of the Delta State House of Assembly Election due in April 2007.
(2) A declaration that the Defendants cannot change or substitute the name of the Plaintiff as the 1st Defendant’s candidate for the Ika South Constituency of the Delta State House of Assembly Election. The time for so doing having expired.
(3) A declaration that it is unconstitutional, illegal and unlawful for the Defendants to change the name of the Plaintiff as the Ika South Constituency of the Delta State House of Assembly candidate of the 1st Defendant after the Plaintiff had been duly nominated by the 1st Defendant as its candidate and after the 2nd Defendant has accepted the nomination and published the name and particulars of the Plaintiff in accordance with Section 32(3) of the Electoral Act until the High Court disqualifies the Plaintiff and or until cogent and verifiable reasons are given to the 2nd Defendant by whosoever desires to make the change.
(4) An Order of injunction restraining the 2nd Defendant, their servant, officers, assigns, privies or agents from carrying into effect or doing anything whatsoever amounting to changing or substituting the Plaintiff’s name as the 1st Defendant’s candidate for Ika South Constituency of the Delta State House of Assembly Election due in April 2007 as same is illegal, null void and of no effect whatsoever.
(5) An Order of Injunction restraining the Defendants, their privies, assigns, servants, officers or agents from changing or substituting the Plaintiff’s name for the April 2007, Ika South Constituency of the Delta State House of Assembly Election as the time for so doing has expired.
(6) An Order of Perpetual Injunction restraining the Defendants from changing or substituting the name of the Plaintiff as the 1st Defendant’s candidate for the Ika South Constituency of the House of Assembly Election due in April, 2007 unless and until a Court order is made disqualifying the Plaintiff and or until cogent and verifiable reasons are given as required under Section 34(2) of the Electoral Act 2006.”
At the conclusion of hearing the learned trial Judge granted Reliefs 1, 2 and 3 while reliefs 4, 5 and 6 were refused.
The 2nd Appellant was not a party to the suit at the Lower Court. But by an order made on 7th day of April, 2009, this Court granted leave to the 2nd Appellant to appeal as an interested party. And on 14th day of April, 2009 he filed a Notice of Appeal containing 6 grounds of Appeal which was later amended by an order of this Court bringing the grounds to 8.
The learned Senior Counsel for the 2nd Appellant formulated 3 issues for determination set out as follows:-
“(1) Whether or not if the Plaintiffs action was properly heard and determined by the trial Court when the interested Party/Appellant was not joined to the suit, although his name, position and interest featured prominently in the processes before the Court.
(2) Whether or not there was admissible or/and reliable affidavit evidence before the learned trial Judge upon which the reliefs granted could be predicated.
(3) Whether there was a sufficient admissible material before the learned trial Judge to justify the reliefs granted by the trial Court.”
The learned Senior Counsel for the 1st Respondent/Cross Appellant also formulated 3 issues for determination set out as follows:-
“(1) Whether the mere fact that the 2nd Appellant’s name featured prominently in the process, ipso facto, is sufficient in law to join him as a party in the suit.
(2) Whether the affidavit evidence relied upon by the trial Judge consequent upon which he granted the reliefs, is not admissible in law.
(3) Whether the lower Court was right in relying on the documentary evidence placed before it when there was absolutely no objection to the documents.”
At the hearing, the learned Counsel for the 2nd Appellant referred to the 2nd Appellant’s Amended Brief of Argument dated 23/10/09 and deemed filed on 30/11/09. He also referred to the 2nd Appellant’s reply to the 1st Respondent’s brief of argument deemed filed on 28/1/2010. He adopted the two briefs of argument in urging that the Appeal of the 2nd Appellant be allowed.
The learned Counsel for the 1st Respondent referred to the 1st Respondent’s Amended Brief of Argument in reply to the 2nd Appellant’s Amended Brief of Argument which was filed on 30/11/09.
He adopted the said brief in urging that the Appeal be dismissed.
He referred to the case of:-Bello vs. INEC & 2 Others (Unreported) Suit No. SC 330/2008 delivered on 5/3/2010 .
The issues formulated by learned Senior Counsel for the parties are similar but I prefer the issues formulated on behalf of the 1st Respondent in the determination of the appeal because I believe that it would settle the controversy between the parties.
ISSUE 1
“Whether the mere fact that the 2nd Appellant’s name featured prominently in the process, ipso facto, is sufficient in law to join him as a party in the suit.”
This issue according to the learned Senior Counsel for the 2nd Appellant questions the propriety of the learned trial Judge hearing and determining the Suit in the absence of the Interested Party/Appellant whose presence was crucial to the determination of the action.
He referred to paragraph 3 (j) of the affidavit in support of the Originating Summons on page 5 of the record, paragraph 3 (k), 3 (b) on page 6 of the record, Exhibit ‘9B’ on page 46 and paragraphs 4 (vi), (viii) of the 2nd Defendant’s Counter Affidavit on page 64 of the record.
He submitted that the parties were not properly constituted at the trial Court because the Interested Party/Appellant was not made a party to the case.
He went further in his submission that anyone whose presence is crucial and fundamental to the resolution of a matter before the Court must be made a party to the case. He referred to the following cases:-
Alhaii (Chief) Lawal & 2 Others vs. Messrs P.G.P. Nigeria Limited & 2 Others (2001) 17 NWLR Part 742 Page 393 at 405 – 406;- Adisa vs. Oyinwola (1999 – 2000) All NLR Vol. 5 Page 453 at 481.
It was also submitted on behalf of the 2nd Appellant that the failure to join a necessary party will render the action incompetent and further that a party who will be affected by the result of a judicial inquiry must be given an opportunity of being heard otherwise, the action taken following the inquiry will be unconstitutional and illegal. He referred to the following cases:-
Henry O. Awoniyi & 2 Others vs. The Registered Trustees of the Rosicrucian Order, Amorc (Nigeria) (2000) 5 WRN Page 1 at 14;- Adebayo vs. David Adeyemi Ogundoyin (2001) 13 NWLR Part 730 Page 403 at 422 and 423; Ojengbede vs. Esan (2001) 18 NWLR Part 746 at 771 at 783; Obi Eboka vs. Emmanuel Esedebe (2003) 17 WRN Page 137 at 162.
He finally urged this Court to hold that the learned trial Judge did not properly determine this suit in view of the non-joinder of the Interested Party/Appellant whose presence according to him was crucial to the determination of the case.
The learned Senior Counsel for the 1st Respondent in his response referred to the questions posed for determination and the prayers at the trial Court and submitted that the 1st Respondent was on the propriety or otherwise of the conduct of the Peoples Democratic Party in purportedly effecting a change or substitution of the 1st Respondent’s name and the purported acceptance of same by independent National Electoral Commission.
He also submitted that the 2nd Appellant is neither a necessary party nor indispensable person in respect of the proceedings at the trial Court.
In his reply brief of argument the learned Senior Counsel for the 2nd Appellant submitted that the interpretation of Section 34 of the Electoral Act sought by the Plaintiff at the trial Court was for the purposes of recovering the PDP ticket for the Constituency in issue. And it is clear that the ticket, which the Plaintiff wanted to reclaim was no longer in the hands of PDP as same had been given to the 2nd Appellant to the knowledge of the Plaintiff. He stated that the 2nd Appellant was therefore a necessary party to the action.
In order to settle the issues in controversy in this appeal it would be necessary to set out the issues for determination and the prayers arising therefrom at the Lower Court
The said issues and prayers are hereby set out as follows:-
“1. Whether the Defendant individually or severally by themselves or through their privies, assigns, servants, officers or agent can change or substitute the Plaintiffs name as the 1st Defendants candidate for Ika South Constituency of the Delta State House of Assembly Elections due in April, 2007, without giving cogent and verifiable reasons.
2. Whether the Defendants, individually or severally through their privies, assigns, servants, officers or agents can change or substitute the Plaintiffs name as the 1st Defendant candidate for Ika South Constituency of the Delta state House of Assembly elections due in April 2007, the time allowed by law for such substitution having expired.
3. Whether the Defendant individually or severally through their privies, assigns, servant, officers or agent can change or substitute the name of the Plaintiffs, which has been published in accordance with Section 32 (3) of the Electoral Act 2006 as the 1st Defendant’s candidate for Ika South Constituency for House of Assembly Elections in Delta State due in April 2007 without an order of court disqualifying the Plaintiff.
4. A declaration that there are no cogent and verifiable reasons for the Defendants to change, substitute or entertain the change of the name of the plaintiff as the candidate of the Peoples Democratic Party (PDP) for the Ika South Constituency of the Delta State House of Assembly Elections due in April, 2007.
5. A declaration that the Defendants cannot change or substitute the name of the Plaintiffs as the 1st Defendant’s candidate for the Ika South Constituency of the Delta State House of Assembly Elections due in April, 2007.
6. A declaration that it is unconstitutional, illegal and unlawful for the Defendants to change the name of the plaintiff as the Ika South Constituency of the Delta State House of Assembly candidate of the 1st Defendant after the Plaintiff has been duly nominated by the 1st Defendant as its candidate and after the 2nd Defendant has accepted the nomination and published the name and particulars of the Plaintiff in accordance with Section 32(3) of the Electoral Act until the High Court disqualifies the Plaintiff and or until cogent and verifiable reasons are given to the 2nd Defendant by whosoever desires to make the change.
7. An order of injunction restraining the 2nd Defendant, their servants officers assigns, privies or agents from carrying into effect or doing anything whatsoever amounting to changing or substituting the Plaintiffs’ name as the 1st Defendants candidate for Ika South Constituency of the Delta State House of Assembly Election due in April, 2007, as same is illegal, null, void and of no effect whatsoever.
8. An order of injunction restraining the Defendants their privies, assigns, servants, officers or agents from changing or substituting the Plaintiffs’ name for the April, 2007 Ika South Constituency of the Delta State House of Assembly Election as the time for so doing has expired.
9. An Order of perpetual injunction restraining the Defendants from changing or substituting the name of the plaintiff as the 1st Defendant’s candidate for Ika South Constituency of the House of Assembly Elections due in April, 2007 unless and until a court order is made disqualifying the Plaintiff and not until cogent and verifiable reasons are given as required under Section 34(2) of the Electoral Act 2006.”
The law governing joinder of parties makes it explicitly clear that except where there are questions in proceedings, which cannot be effectively and completely settled without the presence of a party only then can such a party be joined in an action. Apart from that, the 1st Respondent did not have any cause of action or reliefs against the 2nd ppellant to have warranted joining him in the suit.
In Ajayi vs. Jolayemi (2001) 10 NWLR Part 722 Page 516 at 537-538. The Supreme Court Held thus:-
“The principle guiding joinder of parties as provided in our various rules of Court has received judicial interpretation in our Courts and Courts of other common law jurisdiction. The purpose of the rules is to allow a plaintiff to proceed in the same action against whom he alleges to be entitled to any relief whether his claim is brought against the defendants against whom he alleges to be entitled to any relief whether his claim is brought against the defendants jointly, severally or in the alternative… It is improper to join as co-defendants persons against whom the plaintiff has no cause of action and against whom he has made no claim…”.
Also in Chief Emmanuel Bello vs. Independent National Electoral Commission & 2 Others (Unreported) decision of the Supreme Court Suit No. S.C. 330/2008 delivered on 5/3/2010 it was held among others at page 23 that:-
“…The 2nd Respondent was indeed not a party in the case. Not being a party in the action of the Appellant as framed in the Amended Originating Summons, there was no obligation on the part of the trial Court to have put the 2nd Respondent on notice. Consequently, failure to put the 2nd Respondent which was not a defendant in the action on notice was not fatal to the case of the Appellant at the trial Court to the extent of depriving that Court of its jurisdiction in the case, not to talk of resulting in rendering its decision in the case, as nullity…For the same reason, the accusation of the 2nd Respondent that the trial Court denied its fundamental Right of fair hearing in an action in which it was not a party, has no basis at all in law.”
As I stated earlier, the issues in the trial court bordered on the activities of the political party i.e. Peoples Democratic Party and Independent National Electoral Commission, there is no claim or action against the 2nd Appellant, therefore in my view he is not a necessary party. Put in another way, the suit at the lower court bordered on the noncompliance with Section 34 of the Electoral Act, as regards the statutory role of effecting the substitution of a candidate by a Political Party i.e. PDP, and INEC, who accepted each substitution without regard to the provisions of the Electoral Act 2006. The necessary parties in such a situation are the Political Party, PDP and INEC and not the candidates themselves. See the following cases:-Ifeanyi Chukwu Osondu Co. Ltd vs. Soleh Boreh Nig Ltd (2000) 5 NWLK Part 656 Page 322; Okwejiminor vs. Gbakeji (2008) 5 NWLR Part 1079 Page 172.
On the other hand even if the 2nd Appellant is a necessary party, the law is settled that a non-joinder of a necessary party to a suit will not vitiate or render such a proceeding or judgment arising therefrom, a nullity. See- Ayorinde vs. Oni (2000) 3 NWLR Part 649 at 348.
In conclusion, it is my view that the mere fact that the 2nd Appellants name featured prominently in the process is not sufficient in law to join him as a party in the suit. See – A.C.B. PLC vs. Ndoma-Egba (2000) 10 NWLR Part 675 Page 229. Furthermore, a perusal of the issues and prayers set out earlier in this Judgment would reveal that the presence of the 2nd Appellant is not required to enable the lower Court resolve the said issues.
This issue is therefore resolved in favour of the Respondent and against the 2nd Appellant.
ISSUE 2
“Whether the affidavit evidence relied upon by the trial Judge consequent upon which he granted the reliefs, is not admissible in law.”
The learned Senior Counsel for the 2nd Appellant referred to the affidavit in support of the Originating Summons on pages 4-6 of the record. He referred to paragraphs 3 of the said affidavit and submitted that the deposition in the said paragraph 3 of the said paragraph 3 is inadmissible and/or unreliable. He went further that it cannot form the basis for the grant of any relief for the Plaintiff. He referred to Section 86, 88 and 89 of the Evidence Act. He relied on the following cases:- Hon. Dele Abiodun vs. The Hon Chief Judge of Kwara State & 3 Others (2007) 18 NWLR Part 1065 at 143 -144 and 154-155:
Aibion Construction Co Ltd vs. Rao Investment & Properties Ltd (1992) NWLR Part 219 Page 583 at 596.
He finally urged that this issue be resolved in favour of the 2nd Appellant.
The learned Senior Counsel for the 1st Respondent submitted that this issue was not canvassed at the trial court, therefore that it is incumbent on the 2nd Appellant to have sought the leave of this Court to enable him raise this issue for the 1st time on appeal.
He also submitted that, the affidavit in support of the Originating Summons complied with the provisions of Section 86, 88 and 89 of the Evidence Act. He relied on the following cases of:- F.G.N. vs. A.I.C. Ltd (2006) 4 NWLR Part 970 Page 337 Pages 357- 358; Ajayi Farms Ltd vs. N.A.C.B. Ltd (2003) 4 NWLR Part 810 Page 427; NDIB vs. FEMO Nig Ltd (1997) 2 NWLR Part 489 Page 543 at 560-561.
The learned Senior Counsel therefore urged this Court to resolve this issue against the 2nd Appellant.
In his reply brief of argument the Learned Senior Counsel for the 2nd Appellant submitted that the 2nd Appellant was not a party to the suit at the lower court therefore that the issue could not have been raised.
He submitted further that, the issues can be raised in this Court even if the 2nd Appellant was a party at the trial Court and consented to the admissibility of the affidavit evidence. This is because parties cannot by collusion or by mutually anticipated benefit give consent to admission of evidence which the Evidence Act clearly provides is inadmissible. He referred to the case of:
Ugwu vs. Ararume (2007) 12 NWLR Part 1048 Page 365 at 454; A.N. Mohammed Petroleum Ltd vs. Afribank Nigeria PLC (2006) 17 NWLR Part 1007 Page 131 at 158.
It was contended on behalf of the learned Senior Counsel for the 2nd Appellant that deposition in paragraph 3 of the Affidavit in support of the Originating Summons is inadmissible. It was also stated that 2nd Appellant who was not a party to the suit at the lower Court could not have raised the issue earlier than now.
But learned Senior Counsel for the 1st Respondent submitted that since this issue was not canvassed at the trial Court therefore being a novel issue, it is incumbent on the 2nd Appellant to have sought the leave of this Court to enable him raise the issue for the first time. I agree with the submission of learned Senior Counsel for the 1st Respondent on this issue.
The issue under consideration bordered on the admissibility of the affidavit evidence before the lower Court.
A perusal of the record of appeal would show that there is nowhere both in the Judgment and the proceedings where the issue of admissibility or otherwise of the affidavit evidence was raised.
It is the law that where a party elects to raise an issue which was never canvassed at the lower Court, leave of court must be sought and obtained before such an issue can be argued.
In Inakoju vs. Adeleke (2007) 4 NWLR Part 1025 Page 423 at fins Paragraph D-E. Tobi, J.S.C while commenting on the admissibility of averments contained in an affidavit in support of Originating Summons, held thus-
“On the contrary, the paragraph contains factual statements, so too, paragraph 16 thereof. In the sum, the objection on the paragraphs of the affidavit in support fails. The issue was not raised in the Court of Appeal and so cannot be raised here without leave of the Court. No such leave was sought from whatever way one looks at the objection of fails” (Underlining mine).
In this case, no leave was sought and none was obtained to enable Appellant raise a new issue for the first time on appeal. In the circumstance it is my view that since no leave was obtained, it is too late in the day to raise such issues. See the following cases:- Orunengimo vs. Egebe (2008) All FWLR Part 400 Page 655 at 671:- Baloqun vs. Adejobi (1995) 2 NWLR Part 376 Page 131 at 158;
Olatunji vs. Adisa (1995) 2 NWLR Part 376 Page 167 at 186; Veepee Industries Limited vs. Cozoa Industries Limited (2008) All FWLR Part 425 Page 1667 at 1685;
Direve & Others vs. Ivomahan (1983) 8 S.C .Page 76 at 83; Ayinke Stores Ltd vs. Adebogun (2008) 10 NWLR Part 1096 Page 612 at 617;
Omnia Nig Ltd vs. Dyktrade Ltd (2007) 15 NWLR Part 1058 Page 612 at 617; Onayemi vs. Idowu (2008) 9 NWLR Part 1092 Page 306 at 317: Chris vs. Ononuju (2008) 9 NWLR Part 1093 Page 642 at 644.
Looking at the issue from another angle and assuming the leave was obtained to argue fresh issue on appeal for the first time, my view would be that the Learned trial Judge was right to have relied on the affidavit in support of the Originating Summons because the said affidavit complied with the provisions of Section 86, 88 and 89 of the Evidence Act.
Under Section 86 of the Evidence Act a deponent’s deposition could be derived from either his personal knowledge or from information which he believes to be true.
Where a deponent to an affidavit such as the deponent to the affidavit in support of the Originating Summons at the Lower Court, deposed to facts which are within her personal knowledge, but from information, not necessarily obtained from party to the suit, and she believes such facts to be true, once the particulars as specified in Section 86 of the Evidence Act are disclosed, such deposition can be relied upon by the Court.
In F.G.N. vs. A.I.C. Ltd (Supra) at Page 357 – 358, I.T. Muhammed JCA (as he then was) held thus:
“The trite position of the law is that a person who deposed to his belief in a matter of fact and whose belief is derived from any source other that his own personal knowledge must state explicitly the facts and circumstances forming the ground of his belief. When such belief is derived from information received from another person, the name of his informant must be stated in the affidavit, and he must state reasonable particulars of such an informant including the time, place and circumstances of the information. Sections 88 and 89 of the Evidence Act, Abu vs. Alele Williams (1992) 5 NWLR Part 241 Page 340; Sonnar (Nig) Ltd vs. Partenreedri M.S. Nordwind (1987) 4 NWLR Part 66 Page 520. It is only when a deponent withholds the sources of his information that such an affidavit can be termed to be on hearsay and therefore inadmissible as being contrary to Section 86, 88 and 89 of the Evidence Act. I do not think of such a situation in the present case. The Preliminary Objection to the Counter-Affidavit of the Respondents lack merit and it is hereby dismissed.”
See also the case of:- Ajayi Farms Ltd vs. N.A.C.B. Ltd (Supra) Page 427 at 454 – 455;NIDB vs. Fembo (Supra); Abiodun vs. C.J. Kwara (Supra).
In the circumstance, it is my view that the affidavit evidence relied upon by the trial Court Judge consequent upon which she granted the reliefs is admissible in law.
This issue is also resolved in favour of the 1st Respondent against the 2nd Appellant.
ISSUE 3
“Whether the Lower Court was right in relying on the documentary evidence placed before it when there was absolutely no objection to the documents.”
The learned Senior Counsel to the 2nd Appellant stated that, the Plaintiff did not attach a copy of the letter of substitution to his affidavit. He went further that, all documents attached by the Plaintiff to his Originating Summons and the 2nd affidavit are public documents which needed certification.
He submitted that proof of a document is by the production of that document itself, or a Certified True Copy.
He relied on the following cases:- Densy Industries Nig Ltd vs. Sunday Uzokwe (1999) 2 NWLR Part 591 Page 392 at 405; Jiaza vs. Bangbose (1999) 7 NWLR Part 610 Page 182 at 197;
Nnubia vs. A.G. Rivers State (1999) 3 NWLR Part 593 Page 82 at 107; Koku vs. Koku (1999) 8 NWLR Part 616 Page 672 at 683;
Onimisi Ukana (Alias Jaguda) vs. C.O.P. (1995) 8 NWLR Part 416 Page 705 at 717-718.
He submitted that there were no sufficient material placed before the learned trial Judge to enable her to have granted the reliefs.
He finally urged this Court to allow this appeal, set aside the Judgment of the trial Court and dismiss the Plaintiff’s case.
The learned Senior Counsel for the 1st Respondent referred to the 1st Respondent’s affidavit in support of the Originating Summons and he submitted that there was no specific denial by either 1st and 2nd Appellants of most material and vital depositions contained in the said affidavit.
It was also submitted on behalf of the 1st Respondent that all documents placed before the Lower Court were admissible documents and objection not having been taken to them at the trial, that objection cannot now be taken on appeal.
Learned Counsel referred to some of the averments in the 1st Respondent’s affidavit in support of the Originating Summons. The averments are set out as follows:-
“(a) That the 1st Respondent bought the 1st Appellant’s Expression of Interest Forms and Nomination Forms, which he duly filled and submitted to the 1st Appellant.
(b) That the 1st Respondent was screened and handover a Clearance Certificate by the 1st Appellant thereby clearing him to contest the Primary Election with other contestants.
(c) That the 1st Respondent contested the Primary Elections organized by the 1st Appellant.
(d) That the 1st Respondent won and was declared the 1st Appellant’s Candidate for election into Delta State House of Assembly for Ika South Constituency.
(e) That the 1st Appellant gave the 1st Respondent two INEC Forms i.e. Form C.F. 001 and EC4 B(iii) to fill and which the 1st Respondent dully completed.
(f) The 1st Appellant submitted the list of candidates it was sponsoring who won its primary election vide the appropriate INEC Form CE 002 A, which included the name of the 1st Respondent for Ika South Constituency for Delta State House of Assembly.
(g) The 2nd Respondent i.e. INEC published the name of 1st Respondent at its headquarters and constituencies as candidate sponsored by the 1st Appellant.
(h) The 2nd Appellant, having lost at the 1st Appellant’s primaries, instituted an action against the 1st Appellant and the 2nd Respondent, to challenge the outcome of the result.
(i) The 1st Appellant (sic) learnt from the Asaba office of the 2nd Respondent about a letter of substitution written by the 1st Appellant to the 2nd Respondent substituting his name for the 2nd Appellant.
(j) That substitution of 1st Respondent name had been done about thrice arbitrarily without recourse to the primary election nor the time limit within which to do such substitution.
(k) That the 1st Appellant’s purported substitution of the name of the 1st Respondent was done without reason.
(I) The 1st Respondent was presented as Party’s State House Assembly flag bearer for Ika South Constituency in Delta State on March 1st, 2007 by the 1st Appellant’s National Chairman, Dr. Ahmadu Ali”.
It was further submitted on behalf of the 1st Respondent that the Lower Court based its Judgment on the invocation of Section 149 (d) of the Evidence Act and not on the document tendered, and there was no appeal on this point.
The learned Senior Counsel for the 2nd Appellant in his reply brief of Argument submitted that the invocation of Section 149 (d) of the Evidence Act against the Independent National Electoral Commission is not a finding of fact and therefore there is no need to appeal.
On this issue of admissibility of documents, it was also submitted that only Certified True Copies of Public Document are admissible and no other copy.
He referred to the case of:- Alamieyesigha vs. Federal Republic of Nigeria (2006) 16 NWLR Part 1004 Page 1 at 69 – 70.
It has been contended on behalf of the 2nd Appellant that the Plaintiff/1st Respondent did not attach a copy of the letter of substitution to the affidavit in support of the Originating Summons. The response to the above contention could be found in paragraph 3(k) of the affidavit in support of the Originating Summons. The said paragraph 3(k) is set out as follows:-
“That the Plaintiff was surprised to learn from the Asaba Office of the 2nd Defendant about a letter of substitution written by the 1st Defendant substituting his name for the said Martin Okonta on the 5th of February, 2007. The Plaintiff was only allowed to read the letter but refused a copy of same as the office had only a fax copy which could be read with some difficulty.”
The letter referred to in the above quoted passage was not denied by the 1st and 2nd Appellants. In fact the learned trial Judge held as follows:-
“2nd Defendant was the custodian of electoral documents and the burden was on them to produce the actual document sent to them for nomination and substitution. Strangely, the 2nd Defendant did not deny the affidavit but maintained that Martin Okonta was originally nominated, the Exhibited tract of result does not have a bearing as to nomination list submitted. It did not produce it neither did it substantiate its affidavit deposition. I invoke Section 149(d) of the Evidence Act that it would be unfavourable to it if it is produced.
See:- Adekeye, J.C.A in Ararume vs. Ugwu -CA-47-07 on extract on INEC in the decision of substitution.”
It is therefore clear from the above quoted portion of the Judgment of the Lower Court that the Court based its Judgment on invocation of Section 149(d) of the Evidence Act.
It is also clear that the 2nd Appellant did not appeal against this point.
It is trite that where there is a vital finding upon which a Judgment is predicated and it is not appealed against, such a Judgment remains intact.
In UBA PLC vs. Okeke (2004) 7 NWLR Part 872 Page 393 at 410 Paragraph A-C. Fabiyi, J.C.A (as he then was) held thus:-
“There is no appeal against those salient findings of fact. They are serious enough to lead to the setting aside of the purported sale. Findings of facts not appealed against remain binding on the Appellant herein and its cohorts. It is not for the Appellant to pick and choose the point on which to appeal and leave out a vital determinant point as done in this appeal. Once a vital ground upon which a Judgment is predicated is not appealed against, the Judgment remains intact.”
See also:- Kraus Thomson Org. Ltd vs. Unical (2004) 9 NWLR Part 879 Page 631 at 642; U.B.A. PLC vs. S.A.F. P.U. (2004) 3 NWLR Part 861 Page 516 at 520;
Okonkwo vs. INEC (2004) 1 NWLR Part 854 Page 242 at 256; Okonkwo vs. Okonkwo (2004) 5 NWLR Part 865 Page 87 at 97,
On the issue of admissibility of documents, the learned Senior Counsel for the 1st Respondent submitted that all documents placed before the Lower Court were admissible documents and objection not having been taken to them at trial, that the objection cannot now be taken on appeal. I agree with the submission of the learned Counsel for the 1st Respondent on this point. Even though the 2nd Appellant in this appeal was not a party at the Lower Court, as I said earlier in this Judgment, he could have sought for leave of this Court to raise fresh issues on appeal. This is because the 1st and 2nd Defendants at the Lower Court never raised any serious objection on the matter.
The above view is supported by the decision of the Supreme Court in International Bank of West Africa Ltd vs. Imano Nigeria Ltd (2003) 3 SCNJ Page 160 where the Supreme Court per Iguh J.S.C. held inter alia:
“On appeal however, and provided the evidence complained of is one which by law is admissible albeit under certain conditions, and the party complaining did not object to or consented to its admissibility at the trial, although the condition precedent to its admissibility were not shown to have been satisfied, he cannot be allowed to raise an objection to its admissibility in the appellate Court.”
See also the following cases:- Raimi vs. Akintoye (1986) 3 NWLR Part 26 Page 97:- Kosen Nig. Ltd vs. Savannah Bank (1995) 9 NWLR Part 420 Page 439 at 453 (Per Mohammed, J.S.C);
Olukade vs. Alade (1976) 10 NSCC Page 34 (1976) All NLR Page 57.
In view of the foregoing this issue is also resolved against the 2nd Appellant and in favour of the 1st Respondent.
In the final analysis, since all the issues in this appeal have been resolved against the 2nd Appellant, therefore this appeal is lacking in merit and it is hereby dismissed.
There shall be no order as to costs.
CROSS APPEAL
This is a Cross Appeal against part of the Judgment of the Federal High Court in Suit No. FHC/ABJ/CS/2007 which was delivered on the 10th day of May, 2007.
This action was commenced by Originating Summons at the Lower Court and the Plaintiff/Cross Appellant claimed as follows:-
“(1) A declaration that there are no cogent and verifiable reasons for the Defendants to challenge, substitute or entertain the change of name of the Plaintiff as the candidate of the Peoples Democratic Party (PDP) for the Ika South Constituency of the Delta State House of Assembly election due in April 2007.
(2) A declaration that the Defendants cannot change or substitute the name of the Plaintiff as the 1st Defendant’s candidate for the Ika South Constituency of the Delta State House of Assembly election. The time for so doing having expired.
(3) A declaration that it is unconstitutional, illegal and unlawful for the Defendants to change the name of the Plaintiff as the Ika South Constituency of the Delta State House of Assembly candidate of the 1st Defendant after the Plaintiff had been duly nominated by the 1st Defendant as its candidate and after the 2nd Defendant has accepted the nomination and published the name and particulars of the Plaintiff in accordance with Section 32(3) of the Electoral Act until the High Court disqualifies the Plaintiff and or until cogent and verifiable reasons are given to the 2nd Defendant by whosoever desires to make the change.
(4) An Order of Injunction restraining the 2nd Defendant, their servant, officers, assigns, privies or agents from carrying into effect or doing anything whatsoever amounting to changing or substituting the Plaintiff’s name as the 1st Defendant’s candidate for Ika South Constituency of the Delta State House of Assembly election due in April 2007, as same is illegal, null void and of no effect whatsoever.
(5) An Order of Injunction restraining the Defendants, their privies, assigns, servants, officers or agents from changing or substituting the Plaintiffs name for the April 2007, Ika South Constituency of the Delta State House of Assembly election as the time for so doing has expired.
(6) An Order of Perpetual Injunction restraining the Defendants from changing or substituting the name of the Plaintiff as the 1st Defendant’s candidate for the Ika South Constituency of the House of Assembly election due in April, 2007 unless and until a Court order is made disqualifying the Plaintiff and or until cogent and verifiable reasons are given as required under Section 34(2) of the Electoral Act 2006.”
At the conclusion of the trial, the Lower Court granted reliefs No. 1, 2 and 3 which are declaratory reliefs of the Plaintiff’s Claim and refused the injunctive reliefs i.e. reliefs 4 to 6.
It was as a result of the refusal of the trial Court to grant the injunctive reliefs that made the Plaintiff to file this Cross Appeal pursuant to the leave of this Court granted on the 7th day of April, 2009.
The learned Counsel for the Plaintiff/Cross Appellant formulated a sole issue for determination as follows:-
“Whether the learned trial Judge was right in law in failing to grant the injunctive reliefs claimed by the Plaintiff/Cross Appellant having granted the principal reliefs ”
The learned Senior Counsel for the Interested Party/Cross Respondent adopted the sole issue for determination formulated on behalf of the Cross Appellant.
At the hearing, the learned Counsel for the Cross Appellant referred to the Cross-Appellant’s brief of argument filed on 26/5/09. He adopted the said brief of argument in urging this Court to allow the Cross-Appeal.
The learned Counsel for the 2nd Appellant/Interested Party/Cross Respondent also referred to the Cross Respondent’s brief of argument filed on 28/9/09. He adopted the Cross Respondent’s brief of argument in urging that the Cross Appeal should be dismissed.
The learned Counsel for the Appellant/Respondent/Cross-Respondent did not file any brief of argument. Also the learned Counsel for the 2nd Respondent/Cross Respondent did not file any brief of argument but he left the issue in this Cross Appeal to the discretion of the Court.
The learned Senior Counsel for the Plaintiff/Cross Appellant stated that the sole reason given by the learned trial Judge for refusing the injunctive reliefs is that the reliefs have been overtaken by events and therefore ceased to be live issue.
It was submitted that the trial Judge was in grave error of law to have refused the injunctive reliefs. He relied on the following cases:-
Agbakoba vs. INEC (Supra) Paragraphs F-G:- National Electoral Commission (NEC) vs. NRC (1993) 1 NWLR Part 267 Page 120 at 131; Plateau State vs. A.G. Federation (Supra);Amaechi vs INEC (Supra).
It was further submitted on behalf of the Cross Appellant that the essence of the Plaintiff/Cross Appellant approaching the trial Court ‘ab initio’, was for the Court to grant him enforceable reliefs which are embodied in the injunctive reliefs refused by the trial Court.
It was also stated that the salient question at this juncture is whether given the facts of this appeal an appropriate situation exists for this Court to invoke its powers under Section 16 of the Court of Appeal, Act by making consequential orders that would best serve the interest of Justice.
Learned Senior Counsel for the Cross Appellant finally urged this Court to allow the Cross-Appeal.
On the other hand, the learned Senior Counsel for the Cross Respondent submitted that the learned trial Judge was right in refusing to grant the injunctive reliefs because they were not available to the Plaintiff. He went further that injunctive reliefs being claimed were directed against acts which had already been carried out.
He referred to the counter affidavit filed by the 2nd Defendant particularly paragraph 4 where it was stated that Election had already been conducted and Martin Okonta the Interested Party had been declared winner of the election at the polls. ,
He submitted further that injunction is not a remedy for a completed act. He relied on the case of:- Modile vs. Governor of Lagos State (2004) 12 NWLR Part 887 Page 354 at 379.
He also stated that it is clear from the record that the Plaintiff unduly delayed in bringing the action after being aware of the wrong being alleged.
He submitted that it is trite that an order of injunction is an equitable relief and he who comes to equity must be vigilant, he must come with clean hands and must do equity. He also stated that all cases relied upon by the Cross-Appellant do not avail him.
He finally urged that this Cross Appeal be dismissed.
In his Cross Appellant’s Reply brief of argument the learned Senior Counsel submitted that the issue is not whether elections have been conducted or not but rather whether a person other than the person adjudged to be the candidate of the winning political party at an election has been returned by the electoral body and allowed to occupy an Elective Office or Position contrary to the dictates of the law and contrary to the valid and subsisting Judgment of a Court of Competent Jurisdiction.
The Lower Court gave Judgment in favour of the Cross Appellant in respect of the Declaratory Reliefs but refused to grant the injunctive reliefs sought by the Cross-Appellants based upon the fact that reliefs 4, 5 and 6 have been overtaken by events and therefore ceased to be live issues. The Originating Summons filed by the Cross Appellant at the Lower Court relates to the non-compliance with Section 34 of the Electoral Act 2006. The grievance of the Cross-Appellant was that no cogent and verifiable reason was preferred by the Appellant i.e. PDP to warrant the substitution or for the 2nd Respondent i.e. INEC to entertain the change of the Plaintiff’s name as the candidate of Appellant/1st Cross Respondent for Ika South Constituency of Delta State House of Assembly Elections.
Even though the Originating Summons was issued by the Plaintiff on 30/3/07 and the House of Assembly Elections were held on 14/4/07, the suit does not become spent merely because it was determined after the conduct of the election.
See the following cases:-
– Agbakoba vs. INEC (Supra):- Plateau State vs. A.G. Federation (Supra).
In Amaechi vs. INEC (Supra) Page 315 Paragraphs A-B, Oguntade, J.S.C. held among others thus:-
“As I shall shortly show, it is my view that the approach of the Respondents to this case was to ‘kill’ Amaechi’s case in the misconceived notion that once elections were held the Court would lose its jurisdiction. It is my view that the jurisdiction of the ordinary Courts to adjudicate in pre- election matters remains intact and unimpaired by Sections 178(2) and 285(2) of the 1999 Constitution.”
As could be seen from the cases referred to above, the Supreme Court while interpreting the effect of Section 34 of the Electoral Act 2006 held that an issue as to whether the substitution of a candidate in an election is within Section 34 of the Electoral Act 2006 remains a live issue before and after the election. See also the case of:- Adeogun vs. Fashogbon (Supra).
Consequent upon all I have said so far, when considered along with the cases earlier referred to in this Judgment, it is my view that the trial Court having held that the Plaintiff/Cross Appellant was entitled to the declaratory reliefs ought to have proceeded and grant the injunctive reliefs as well. This is because a declaratory Judgment merely declares a right. And a Plaintiff who intends to have an enforceable legal right from a declaratory Judgment or order in his favour must also seek an injunctive order. That is exactly what the Plaintiff/Cross Appellant has done in this case.
Furthermore, the refusal of the injunctive reliefs by the Lower Court was wrong because it left the Cross Appellant with only declaratory reliefs and this has occasioned miscarriage of Justice on the part of the Cross Appellant; moreso, when the Interested Party/Cross Respondent (Martin Okonta) who is not supposed to occupy any seat continued to occupy the Cross Appellant’s seat in the Delta State House of Assembly since 2007, inspite of the Lower Court’s findings that the Appellant and the 2nd Cross-Respondent did not comply with Section 34 of the Electoral Act 2006.
The law is trite that an Appellate Court would upturn a decision of a Lower Court where there is an error in it which has occasioned a miscarriage of Justice.
The learned Senior Counsel for the Cross Appellant contended that this is an appropriate situation to invoke the power of this Court under Section 16 of the Court of Appeal Act in order to make consequential orders. But learned Senior Counsel for the Interested Party/Cross Respondent submitted that Section 16 of the Court of Appeal Act is not available to the Cross-Appellant.
The said Section 16 of the Court of Appeal Act 1976 Cap. 75 Laws of the Federation of Nigeria 1990 (hereinafter referred to as ‘The Court of Appeal Act’) provides thus:-
“The Court of Appeal may from time to time make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final Judgment in the appeal and may make an interim order or grant any injunction which the Court below is authorized to make and grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purpose of such re-hearing or may give such other direction as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or in the case of an appeal from the Court below in that Court’s appellate jurisdiction order the case to be re-heard by a Court of competent Jurisdiction”.
In effect the Court of Appeal Act conferred general powers on this Court to deal with any case before it on appeal, such powers includes power to make orders vested in the Court of first instance.
The said Section 16 of the Court of Appeal Act has been construed by the Supreme Court and this Court in so many cases and I will refer to a few of such cases.
The Supreme Court in Ovenseri vs. Osagiede (1998) 11 NWLR Part 572 Page 1 considered Section 16 of the Court of Appeal Act along with Order 3 rule 23 of the Court of Appeal Rules 2002. Iguh, J.S.C held thus:-
“There can therefore be no doubt that the Court of Appeal, upon a consideration of the totality of all the foregoing principles of law and rules of Court, had ample jurisdiction to vary the order of dismissal made by the trial Court to that of the striking out of the suit, notwithstanding the fact that the Respondents had not appealed against the same.
The case was clearly not properly before the Court and it would be idle to dismiss such an action, which, to all intents and purposes, was incompetent and therefore only liable to be struck out…”
In A.G. Anambra State vs. Okeke (2002) 12 NWLR Part 782 Page 575 the Supreme Court pronounced on the wide powers conferred on this Honourable Court under the provisions of Section 16 of the Court of Appeal Act.
Ayoola, J.S.C at Page 606, Paragraph F – G opined as follows:-
“Section 16 of the Court of Appeal Act gives the Court of Appeal ‘full jurisdiction’ over the whole proceedings as if the proceedings had been in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purpose of such re-hearing.”
In Balogun vs. Wema Bank Plc (2000) 4 NWLR Part 654 Page 652 Oguntade, J.C.A (as he then was) held among others that:-
“Ours is a Court of Appeal. Our Jurisdiction can only be activated by notice of appeal properly and validly filed. And the reliefs we can grant upon an appeal are circumscribed by the issues raised in the ground of appeal and the reliefs sought by the Appellant. In addition we can make consequential orders, which might not have be asked for by any of the parties. By the same token, we cannot make orders which are unrelated to the issues agitated in the notice of appeal of the Appellant”.
Also in Julius Berger Nig. Plc vs. Nwagwu (2006) 12 NWLR Part 995 at Page 518 this Court held thus:-
“By virtue of the Provision of Section 16 of the Court of Appeal Act 1976, the Court of Appeal can properly deal with an issue even though the trial Court made no pronouncement on it. This is because the Court of Appeal has full jurisdiction over the whole proceedings before it as if proceeding had been instituted in the Court of Appeal as a Court of first instance. That is to say, the Court of Appeal can deal with a case the same way the trial Court would have done.”
Finally, in Odedo vs. INEC (2008) 17 NWLR Part 1117, Page 554 at 611 Paragraphs F – H, the Supreme Court while interpreting the applicability of Section 22 of the Supreme Court Act, which is ‘im pari materia’ with Section 16 of the Court of Appeal Act, enumerated the conditions for bringing the provisions into play as follows:-
(1) The lower Court or the trial Court must have the legal power to adjudicate in the matter before the Appellate Court can entertain it.
(2) The real issue raised by the claim of the Appellant at the lower Court or trial Court must be seen as being capable of being distilled from the Grounds of Appeal.
(3) All necessary material must be available to the Court for consideration.
(4) The need for expeditious disposal of the case or suit to meet the ends of Justice must be apparent on the face of the materials presented.
(5) The injury or hardship that will flow if the case is remitted to the Court below must clearly manifest itself.
In this case under consideration the questions posed for determination and the reliefs sought at the lower Court bordered on pre-election matters which by virtue of Section 251 (i), (p) (q) and (r) of the 1999 Constitution are within the exclusive Jurisdiction of the lower Court.
Also, by virtue of Order 54 Rule 1, of the Federal High Court (Civil Procedure) Rules 2000 which was the applicable Rules at the lower Court when this Suit was pending, the trial Court having rightly held that the Cross Appellant was entitled to the declaratory reliefs, ought to have proceeded to make consequential order necessary for doing Justice by declaring the Plaintiff/Cross Appellant as the rightful candidate for election into the Delta State House of Assembly representing Ika South Constituency.
A consequential order is one giving effect to a Judgment or one directly traceable to or flowing from the Judgment or order duly prayed for. It is essentially one which would make the Principal order effectual and effective or incidental to the Principal Order. See the following cases:- Inakoiu vs. Adeleke (2007) 4 NWLR Part 1025 Page 423 at 708 – 709; Obayegboma vs. Obazee (1970) 5 S.C. Page 247;
Funduk Engineering Ltd vs. James McArthur & 4 Others (1996) 7 SCNJ Page 61 at 76 – 77.
It is also necessary to consider the urgency of this matter which when viewed against the backdrop of the fact that the tenure of Members of House of Assembly is for a period of four years and already about three years had been spent leaving the Plaintiff/Cross Appellant with only one year.
In view of the foregoing, the invocation of Section 16 of the Court of Appeal Act by this Court would be appropriate especially when viewed against the backdrop that it is now a settled position in our Electoral Jurisprudence that in an Election, it is the political party as opposed to a candidate sponsored by a political party that is the real winner in an election.
See: – Section 221 of the 1999 Constitution of the Federal Republic of Nigeria; Amaechi vs. INEC & Others (Supra).
In this case under consideration, it has been held by the lower Court that the substitution of the Plaintiff/Cross Appellant was not in compliance with Section 34(1) & (2) of the Electoral Act 2006 and the consequence of non-compliance is nullification of the purported election of the Interested Party/Cross Respondent (Martin Okonta) to the Delta State House of Assembly, representing Ika South Constituency.
Apart from that, as stated earlier in this Judgment, the fact that this suit was commenced on 30/3/07 and the House of Assembly election was held on 14/4/07 does not make the suit to be academic or hypothetical.
In the circumstance, it is my view that it is the Plaintiff/Cross Appellant that must be deemed as the winner of the Delta State House of Assembly Election held in April 2007 and not the Interested Party/Cross Respondent i.e. Martin Okonta. Therefore, the Plaintiff/Cross Appellant ought to have been granted the injunctive reliefs.
This issue is therefore resolved in favour of the Plaintiff/Cross Appellant and against the Interested Party/Cross Respondent.
In conclusion, pursuant to Section 16 of the Court of Appeal Act I therefore make the following orders:-
(1) This Cross Appeal is hereby allowed.
(2) The 2nd Defendant/Respondent, their Servants, Officers, Assigns, Privies or Agents are hereby restrained from carrying into effect or doing anything whatsoever amounting to changing or substituting the Plaintiff’s name as the 1st Defendant’s candidate for the Ika South Constituency of Delta State House of Assembly Election held in April 2007.
(3) An order of perpetual injunction is hereby granted against the Defendants, their Privies, Assigns, Servants, Officers or Agents from changing or substituting the Plaintiffs name for Ika South Constituency of the Delta State election held in April 2007.
(4) It is hereby declared that, it was the Cross Appellant who was the Appellant/Cross Respondent’s candidate for the election into the Delta State House of Assembly representing Ika South Constituency.
(5) The 2nd Respondent i.e. INEC Independent National Electoral Commission is hereby directed to forthwith issue a Certificate of Return for Ika South Constituency of the Delta State House of Assembly to the Cross Appellant being the Appellant’s candidate who contested the election.
(6) The Clerk of the Delta State House of Assembly is hereby directed to swear in the Cross Appellant'(Kingsley Nonye-Philips) forthwith as the rightful candidate representing Ika South Constituency.
The Cross Appellant is entitled to costs, which is fixed at (=N=100,000.00) One Hundred Thousand Naira against the Interested Party/Cross Respondent.
MARY U. PETER-ODILI, J.C.A.: I had the opportunity to read the draft of the judgment of my learned brother JIMI OLUKAYODE BADA, J.C.A which decisions I agree with. I also dismiss the appeal and allow the cross-appeal for the very reasons stated fully by my brother.
I abide all the consequential orders he made.
ABDU ABOKI, J.C.A.: I have had the privilege of reading in advance the Lead Judgment of my learned brother JIMI OLUKAYODE BADA, J.C.A. just delivered. I agree with his reasonings and conclusion reached in this judgment. I also allow the appeal.
I abide by his consequential orders including the order as to cost.
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Appearances
CHUKWUMA CHUKWUDI with him;
UWACHUKWU IFEKANDE,
UCHENNA OKOLO
O.A. DARE;
A. UMORU and
U. GIWAFor Appellant
AND
EKIDE EHIGHELUA;
F. E. ISELEWA
EZE CLIFFORD
I.S. UTUK;
A. NKOYOFor Respondent
