PEOPLES DEMOCRATIC PARTY v. IBEGWURA ORDU AZUBUIKE
(2012)LCN/5231(CA)
In The Court of Appeal of Nigeria
On Thursday, the 15th day of March, 2012
CA/PH/175/2011
RATIO
WHETHER A LEAVE OF COURT IS NECESSARY IN ORDER TO APPEAL AGAINST THE DECISION OF THE LOWER COURT.
Under section 241 (1 and b) of the 1999 Constitution (as amended):-
“An appeal shall lie from decision of the Federal High Court or High Court to the Court of Appeal as of right in the following cases.
(a) Final decision in any Civil or Criminal proceedings before the Federal High Court or High Court sitting at first instance.
(b) where the ground of appeal involves questions of law alone decisions in any civil or criminal proceedings. It seems clear that section 241(1a) and (1b) are mutually exclusive. In other words whilst section 241(1a) is in respect of final decisions section 241(1b) cannot but be interpreted to apply to interlocutory decisions only. Simply put sifting the grounds of appeal into questions of law mixed fact or law or facts alone in order to determine whether leave of court is necessary is only relevant when the decision appealed against is interlocutory as opposed to final. The next question is the decision appealed against in this appeal a final decision or an interlocutory one? Can the issue decided upon by the lower court be brought back to the same court by the parties? This is the real question that determines the finality or otherwise of a decision. See OGOLO V. OGOLO (2006) 10 WRN 92 at 116; ODUTOLA V ODERINDE (2004) 30 WRN 1. PER. T. O. AWOTOYE J.C.A.
ON THE MEANING OF THE TERM SPONSOR
The word “sponsor” as used is defined in the Black’s Law Dictionary (with pronunciations) 6th Edition as ” A surety, one who makes a promise or give security for another… PER. T. O. AWOTOYE J.C.A.
Justice
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
Justice
PEOPLES DEMOCRATIC PARTYAppellant(s)
AND
IBEGWURA ORDU AZUBUIKE – 1ST RESPONDENT
AND
RIVERS STATE INDEPENDENT ELECTORAL COMMISSION – 2ND RESPONDENT
AND
1. HONOURABLE RAYMOND NWOKOCHA
2. HONOURABLE DOGULAS IFEAYICHUKWU UZAH
3. HONOURABLE (SIR) FIDELIS OBIOSA
4. HONOURABLE HARCOURT AMUA
(Suing for themselves and on behalf of the members of the Ogba/Egbema/Ndoni Legislative) – 3RD SET OF RESPONDENTSRespondent(s)
T. O. AWOTOYE J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of an appeal against the ruling of Aprioku J. of High Court Rivers State delivered on 14/2/2011 wherein he dismissed the application for joinder brought by the appellant on the ground that it lacked merit.
The appellant being dissatisfied with the ruling filed a Notice of Appeal on 18/12/2011, containing 3 grounds of appeal.
On transmission of records parties filed and exchanged briefs.
The appellant formulated two issues for determination as follows:-
“1) Was the learned trial court right in dismissing unfairly the application of the appellant for joinder at the lower on grounds of appellant not being a necessary party particularly in the light of the learned lower courts order at page 512 of the record of appeal.
2) Was the learned trial court right in dismissing the appellant’s application for joinder as an abuse of the process of the court and also the fact that the appellant is not a necessary party relying on the Court of Appeal case in BISIMILLAHI V. YAYBA EAST LOCAL GOVERNMENT COUNCIL (2003) FWLR PT 141 page 1939 to overrule the Supreme Court in AMAECHI V INDEPEDENT ELECTORAL COMMISSION & 2 ORS (2008) ALL FWLR PT 407 page 1?”
Learned counsel for appellant submitted that the appellant was not only a proper party but a necessary partry in line with GREENE V GREENE (2001) FWLR W 76 page 795, He stated further that it was the duty of courts to ensure that parties that were likely to be affected by the result of the action were joined in the action. He relied on OKUKIYA V AKWIDO (2001) FWLR PT. 39 page 1487 at 1523. He further referred to the case of Re:- OMIDIJI (2002) FWLR PT. 35 page 735 at 747 and AMAECHI V. INEC & ORS (2008) ALL FWLR PT.407 page 1 at 97-98 and submitted that only political parties won elections in Nigeria and so the appellant was a necessary party to be joined. He finally urged the court to resolve the issue in favour of the appellant.
On issue No. 2, he urged the court to apply the position of the law in AMAECHI’S case (supra) and hold that the said application was not an abuse of court process, resolve issue No. 2 in favour of the appellant allow the appeal, set aside the said decision of the lower court and join the appellants as a party to the suit pursuant to section 221 of the constitution as amended.
The 1st Respondent in his brief argued the preliminary objection in respect of which an earlier notice had been given. The grounds of the preliminary objection are:
“i. That the appellant’s motion on Notice date 4th day of February 2011 and filed on the 7th day of February, 2011 in respect of which the court below gave the interlocutory decision appealed against, was a motion which called for the exercise of the discretion of the court below and ispso facto, in pursuance of section 14(1) of the Court of Appeal Act, (Cap C36, Laws of the Federation of Nigeria, 2004) and Sections 241 (1) and 242(1) of the Constitution of the Federal Republic of Nigeria, 1999; leave of the court below or of this Honourable Court is required to lodge a competent appeal against the said interlocutory decision.
ii. That Grounds 1, 2 and 3 of the Notice and Grounds of Appeal, although erroneously branded as errors in law are, in fact, grounds of mixed law and fact as the said grounds of Appeal, are not only predicated on disputed facts and evidence as to whether the Appellants were necessary parties to be joined in the suit but also devolves on the trial courts evaluation of the evidence place before it.
iii. Again, the said grounds although erroneously branded errors in law are, in fact grounds of mixed law and facts for the grounds of appeal are predicated on complaint against the trial court’s finding of fact.
iv. That Ground 4 of the Notice and Grounds of Appeal, devolve in the main, on issues which the appellant did not raised before the trial Court, which issues can only be raised before this Honourable Court with the leave of the court and the said leave, the Appellants failed to obtain.”
Learned counsel submitted that the appellant ought to have first sought for and obtained leave of court because the grounds of the appeal are an facts and the decision appealed against was interlocutory. He relied an several cases including OLOGUNLEKE V. OGUNEYEHUN (2008) NWLR (PT.1068) 397 at 341. He submitted that a ground of appeal questioning the exercise of discretion of a lower court is a ground of mixed law and fact. He cited FBN PLC V ABRAHAM (2008) 18 NWLR (PT.1118) 172 at 189.
On ground 4 learned counsel submitted that it raised fresh issues which could only be raised with leave of court. He relied on MASKALA V SILFI (2002) 13 NWLR (PT.784) 216 at 226 and other cases.
He urged the Court to strike out the Notice of Appeal on ground of incompetence.
On the main appeal learned counsel for the 1st Respondent formulated one single issue for determination.
Whether the learned trial judge was wrong in dismissing the application for joinder on the ground that the appellant was not a necessary party to be joined in the suit.
He postulated that three relevant questions needed to be determined for a trial court to exercise its discretion on whether or to join applicant to a suit. They are:-
“a. Is it possible for this court to adjudicate upon the cause of action set up by the Claimants, if the Applicant/Appellant is not added as a party.
b. Is the Applicant seeking to join as a party ought to have been joined in the first instance, and;
c. Is the Applicant seeking to join someone who presence before the court as defendant will be necessary in order for the court to effectually and completely adjudicate upon and settle all the questions involved in the cause.”
He relied on AKANBI & 7 ORS V. FABUNMI & ANOR (1986) 17 NSCC (PT.1) PAGE 364 AT 370; AJAYI & ORS V. JOLAYEMI (2001) 5 SC (PT.11) 31 AT 36 AND 44, ADEFARASIN V. DAYEKEH & ANOR (2007) ALL FWLR (PT.348) 911 AT 934. He finally summarized his submission on page 22 – 23 thus:
“6.1 On the whole, we most respectfully urge your lordship to dismiss the appeal.
BECAUSE:
The question is controversy is the interpretation of section 13, 65 and 66 of the Electoral Law of River state as it affects the conduct of elections in ONELGA, and the tenure of the present office holders, who are the 2nd sets of Defendant/3rd sets of Respondents joined on 31/1/2011 by the lower court as parties. The question to be Resolved does not require the presence of the Applicant, PDP seeking to join as 3rd set of Defendant in this suit.
BECAUSE:
The appellant’s presence is not material in this suit as the result of this suit will only bind the Rivers state Independent Electoral commission (RSIEC) as the body charge with the conduct of elections in Rivers state, and the present office holders who are 2nd Defendants, because their tenure is what is being questioned to determine as to whether it will expire in March, 2013.
BECAUSE:
The result of this suit will not be binding on the Appellant as the office holders who are 2nd set of Defendant/3rd sets of Respondent were joined as necessary parties on 31/1/2011. The interest of Appellant or any other political party is too remote in this case as to join them as material or necessary parties, since they are neither office holders in Ogba/Egbeme/Ndoni Local Government Area nor are they charged to conduct the elections as 1st Defendants.”
I have carefully considered the submissions of learned counsel as well as the content of the record of appeal transmitted to this court, I shall first deal with the preliminary objection of the 1st respondent.
Under section 241 (1 and b) of the 1999 Constitution (as amended):-
“An appeal shall lie from decision of the Federal High Court or High Court to the Court of Appeal as of right in the following cases.
(a) Final decision in any Civil or Criminal proceedings before the Federal High Court or High Court sitting at first instance.
(b) where the ground of appeal involves questions of law alone decisions in any civil or criminal proceedings.
It seems clear that section 241(1a) and (1b) are mutually exclusive. In other words whilst section 241(1a) is in respect of final decisions section 241(1b) cannot but be interpreted to apply to interlocutory decisions only. Simply put sifting the grounds of appeal into questions of law mixed fact or law or facts alone in order to determine whether leave of court is necessary is only relevant when the decision appealed against is interlocutory as opposed to final.The next question is the decision appealed against in this appeal a final decision or an interlocutory one? Can the issue decided upon by the lower court be brought back to the same court by the parties? This is the real question that determines the finality or otherwise of a decision. See OGOLO V. OGOLO (2006) 10 WRN 92 at 116; ODUTOLA V ODERINDE (2004) 30 WRN 1. And the answer to it in this case is No!
I am of the respectful view that the decision appealed against is a final decision which comes under the provision of section 241(1a) of the 1999 Constitution. I therefore hold that the appellant does not need leave of court to appeal against the decision of the lower court.
Does Ground 4 of the Grounds of appeal devolve on an issue not raised before the trial court thereby raising fresh issues? It is necessary at this stage to look at the grounds of appeal contained in the Notice of Appeal filed on 18/2/2011.
The grounds of appeal (excluding the particulars) are:-
“1. The learned trial judge erred in law when in dismissing the application by the people Democratic Party to be joined as the 6th Defendant in this suit he held that the Appellants as the 2nd set of Defendants were joined in this suit by an order of this court on 31 January 2011 because it is their claim that they were elected in a general election on the 6th day of March 2010 and not in a bye election as contended by the claimants.
2. The learned trial judge erred in law when at an interlocutory stage he made a position finding touching on the substance of the suit when he held that, that fact that the 2nd set of Defendants were sponsored as candidates of the people Democratic party which they won as chairman and councilors, is not a sufficient cause to make them parties.
3. The learned trial judge erred in law when at an interlocutory stage he made a positive finding touching on the substance of the suit when he held that “in this case there is no relief or facts in controversy that require the presence of any political party before this court can adjudicate and resolve the issues of law raised by the claimants… In the instant case, the presence of the peoples Democratic party or any other political party is not necessary for the purpose of effectually and completely adjudicating upon and settling all the questions involved in the cause or matter before this court… The interest of PDP or any other political party is too remote in this case as to join them as material or necessary parties.”
With due respect to learned counsel to the 1st Respondent. I am unable to see the 4th ground of appeal referred to in the preliminary objection, There are only 3 grounds of appeal in the Notice of Appeal filed on 18/2/2011.
In the circumstance the preliminary objection fails and it is accordingly overruled.
For the main appeal I shall adopt the sole issue formulated by the 1st Respondent which I consider wide enough to embrace all the issues raised in this appeal.
Was the learned trial judge wrong to have dismissed the application for joinder of the appellant?
The claimant at the court below had sought the determination of the following questions and orders via originating summons filed an 25/11/2010:-
i. Whether by the provisions of the Rivers State Independent Electoral Commission Law of rivers State Local Government Law 1999 as amended. Elections shall hold in Ogba/Egbema/Ndoni L.G.A. of Rivers State in 2011.
2. Whether by the provisions of the said laws a vacancy shall exist in Ogba/Egbema/Ndoni L.G.A. of Rivers State in 2011. AND if the above questions are answered in the affirmative, the claimant claims/asks for the following:
A. A Declaration that by virtue of the combined provisions of SS 65 & 66(1) (3) of the Rivers State Local Government Law, 1999 as amended, the tenure of the Ogba/Egbema/Ndoni L.G.A. council shall expire in March in 2011.
B. A Declaration that pursuant to section 13(1) of the Rivers State Independent Electoral Commission Law of the No. 2 of 2000 law election shall hold in Ogba/Egbema/Ndoni L.G.A. in 2011 (on a day to be fixed by RSIEC).
C. An Order directing the RSIEC to conduct LGA elections in Ogba/Egbema/Ndoni LGA in 2011 (on a day to be fixed by RSIEC)”
The originating summons was supported by 15 paragraph affidavit paragraph 5 – 12 of the affidavit are very pertinent. They read:-
5. That a standard erection was held in the state in 2008 in all the local government areas of the state.
6. That however on 9th day of November 2009, the Ogba/Egbema/Ndoni L.G. A council was dissolved by the Rivers State Government.
7. That a bye-election was subsequently held in 6th January 2010 and the elected representatives sworn in on 6th March 2010.
8. That in the guidelines released by the defendant for the 2011 local government elections Ogba/Egbema/Ndoni L.G. A. was listed as one of the local government areas where election will not hold. Attached as Exhibit A is a copy of the guidelines released by the defendant.
9. That the claimant is from the affected local government area Ogba/Egbema/Ndoni L.G.A. attached as Exhibit B is the claimants local government letter of identification.
10. That as a stakeholder and a registered member of the united Nigeria peoples Party, the claimant has an interest in the conduct of local government elections in the LGA attached as Exhibit C is the claimant’s party card.
11. That the defendants have concluded pans to conduct erection next year excluding Ogba/Egbema/Ndoni L.G.A.
12. That I am verily informed by my council A. L. Ogolo Esq that it is necessary for this Honourable court to interpret the law as regards the existence of a vacancy and the conduct of elections in River State.”
The respondent filed a counter affidavit to oppose the originating summons.
The appellant later applied to be joined on 7/2/2011. In the supporting affidavit sworn to by Cyprian Chukwu, the Legal Adviser of the applicant, the applicant in paragraphs 18 – 19 of deposed as follows:-
18. The applicant is the body directly affected by the declaratory relief(s) claimed by the claimants and also, the body that would be bound by any declaratory relief(s) granted in this suit as it has vest interest in this action being the winner of the election which the claimant want to surreptitiously set aside.
19. It would meet the overall internal and Justice of this case that Applicant be joined in this suit as the winner of the elections of March 6 2010 wherein its candidates, to wit the 2nd set of Defendants have a right to remain in office for statutory period of their tenure except lawfully removed.”
The learned trial judge after hearing the parties dismissed the application. Was the appellant/applicant a necessary party having regard to the facts deposed to in the affidavits and the provision of Rivers State Independent Electoral Commission Law No. 2 of 2001?
The answer is yes with due respect. By virtue of section 23 (2b) of the Rivers State Independent Electoral commission Law “person shall not be qualified to contest a local government election unless
(b) he is a member of a political party and is sponsored by that political party.
The word “sponsor” as used is defined in the Black’s Law Dictionary (with pronunciations) 6th Edition as ” A surety, one who makes a promise or give security for another…
It can be said in other words that the appellants was the surety for the 2nd set of Respondents at the election and the 2nd set of respondents could not have qualified for the election without the appellant. See paragraph 12 -18 of the affidavit of the applicant on page 186 of record. It needs be noted that it is the term of office of the 2nd set of Respondents that is being sought to be determined. If another election was ordered the appellant would have to sponsor candidates for the election. I am not in doubt that the application of the appellant to be joined at the lower court was wrongly refused and dismissed?
The presence of the appellant/applicant is necessary for the effectual and complete adjudication of the questions involved in the cause or matter. The applicant is also likely to be affected by the proceedings. See EFP CO. LTD V. NDIC (2007) 9 NWLR PT.1039 page 216. See AMAECHI V. INEC 2008 ALL FWLR PT.407 P.1.
I therefore resolve the sole issue in favour of the appellant. This appeal has merit
It is hereby allowed. Parties are to bear their respective costs.
MUSA DATTIJO MUHAMMAD, J.C.A.: On perusing the draft of the lead judgment my learned brother Awotoye JCA obliged me I entirely agree with him, given the reasons for his conclusion, that this appeal has merit. I allow the appeal for those same reasons and make the same order on cost.
PAUL ADAMU GALINJE, J.C.A.: I have read before now the judgment just delivered by my learned brother, Awotoye JCA and I entirely agree with the reasons contained therein and the conclusion arrived thereat.
The preliminary objection is hereby overruled. Appeal has merit and it is allowed. I endorse all the consequential orders made in the lead judgment including order as to cost.
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Appearances
S. A. Somiari with C. E. Eze (Miss)For Appellant
AND
C. I. Enweluzo, E. N. Ebete, H. Okwukwu, E. C. Aguma, and S. BarigborFor Respondent
