Vivian Clems Akpamgbo-okadigbo Vs Egbe Theo Chidi (2015)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, JSC

This is an appeal against the judgment of the Court of Appeal, Abuja Division, hereinafter referred to as the lower court, delivered on 8th November, 2013. The appellants had appealed to the court as interested parties against the judgment of the Federal High Court sitting in Abuja, hereinafter referred to as the trial court, in suit No. FHC/ABJ/CS199/2011. The brief and undisputed facts that brought about the appeal are hereinunder supplied. The 1st – 17th respondents were the plaintiffs at the trial court with the independent National Electoral Commission (INEC) and the Peoples Democratic Party (P.D.P.) being the 1st and 2nd defendants respectively. By their originating summons filed on 14th February, 2011 as further amended, the plaintiffs sought of the trial court the determination of the following three PAGE| 3 questions:- “(i) Whether having regard to the constitution of the Peoples Democratic Party and her Electoral Guidelines, it is only the National Chairman and the National Secretary of the Peoples Democratic Party (PDP) who can make submission of names of the candidates that the Peoples Democratic Party (PDP) proposes to sponsor in an election and if so, (ii) Whether the rejection of the names of the 1st – 17th Plaintiffs as submitted by the National Chairman and National Secretary of the party did not amount to disqualification of the said candidates from contesting the forthcoming April 2011 elections into the Anambra State House of Assembly and if so whether the defendants have power to do so without affording the affected candidates any fair hearing or hearing at all. (iii) Whether the defendants have powers to reject or disqualify any candidate particularly the 1st to f Plaintiffs when no Court of competent jurisdiction had adjudged them ineligible or disqualified.” On answering the foregoing questions, the plaintiffs urged the trial court to grant them certain declaratory and injunctive reliefs. Having sought and obtained leave of the trial court to further amend their originating summons, the plaintiffs introduced their 6th & 10th reliefs which are hereinunder reproduced for ease of reference:- “6. A declaration that the Plaintiffs are the validly nominated candidates of PDP for the elections into the Anambra State House of Assembly for the constituencies listed against the plaintiffs names. 10. Aii Order of Court restraining the 1st Defendant from issuing certificates of return to any other person other than the 1st. 8th. 10th, 14th and 16th plaintiffs the PDP having won the election in their respective constituencies or if a certificate of return had been issued to any other person other than the said 1st, 8th, IP11\ 14th and 16th plaintiffs, an Order compelling the 1st Defendant to cancel the said certificate. “(Underling supplied for emphasis). It is to be stated for completeness that the further amended originating summons taken out by the 10th – 17th respondents, but for the 10th relief supra, is about who, between them and others, consequent upon the parallel primaries of 19th respondent herein, are their party’s candidates in the April 2011 elections for the various constituency seats. The 18th respondent, INEC, the plaintiffs assert, had inter-alia unlawfully accepted the lists of the names of the PAGE| 4 appellants from the Enugu State executive body rather than the list of the names of the 1st -17th respondents names submitted to it by the National Executive body of the P.D.P as the party’s candidates in the April 2011 elections. In its judgment, the trial court granted reliefs 1, 2, 4, 5 and 6 to the plaintiffs and non-suited them on reliefs 3, 7, 8,-9, and 10 on the ground that to do otherwise would imply ordering the cancellation of certificates of return issued by the 1st defendant to “any other candidates” without having afforded them a hearing. Sequel to the reliefs granted them in suit No. FHC/ABJ/CS/199/2011, five out of the plaintiffs instituted suit No. FHC/ABJ/CS/574/2011, again at the trial court, against INEC, the appellants and the Clerk of the Anambra State House of Assembly seeking to enforce the judgment they obtained in the earlier suit. The appellants became aware of suit No. FHC/ABJ/CS/199/2011 and the reliefs ordered against them in favour of the 1st – 17th plaintiffs therein on their being served the originating processes in respect of the subsequent suit No. FHC/ABJ/CS/574/2011. Being dissatisfied, the appellants obtained leave of the trial court and appealed against the court’s judgment in suit No. FHC/ABJ/CS/199/2011 to the lower court. In dismissing the appeal, see page 2571 of Vol. 3 of the record of Appeal, the court held that the appellants who did not participate in the primary election conducted by the National Executive of the 1st respondent and having emerged from the illegal primaries conducted by the party’s state executive, neither have any interest nor right the enforcement of which would warrant their being heard by any court. Still aggrieved, the appellants have further appealed to this Court on an amended Notice containing five grounds of Appeal. The two issues distilled for the determination of the appeal in the appellants’ brief of argument read:- “(i) Whether the trial Court and the Court of Appeal had jurisdiction to entertain/grant reliefs ‘6’ and ’10’ introduced to the suit by further amendment 21 days after election; and if the answer is in the negative, whether both the trial Court and the Court of Appeal had jurisdiction to entertain the whole Suit at that stage. (This issue relates to grounds 1 and 2 of the Amended Notice of Appeal) (ii) Whether the lower court endorsed the breach of the rule of audi alteram partem when it held in its judgment as follows:- ‘Since the appellants did not participate in the primary election conducted by the PAGE| 5 National Executive Committee of the PDP, they did not have any interest to protect in this suit that is questioning the powers of INEC to accept candidates of the parties emerging therefrom, the appellants have heard them. The appellants are a product of an illegality and cannot enjoy any right or privilege to be protected by the Court by affording a hearing or fair hearing.’ (This issue relates to grounds 3 and 4 of the Notice of Appeal).” The 1st – 8th and 9th – 10th respondents’ identical issue for the determination of the appeal as contained in their respective briefs reads:- “Whether the herein appellants were necessary parties to the suit as to warrant their being accorded fair hearing or hearing at all particularly with respect to reliefs 1, 2, 4, 5 and 6.” The not too dissimilar Issue formulated in the 11th – 14th respondents’ brief is :- “Whether the court below was right when it held that the Appellants are a product of an illegality and cannot enjoy any right or privilege to be protected by the court by affording a hearing or fair hearing” The 15th – 17lh respondents have adopted the issues formulated by the appellants as those that have arisen for the determination of the appeal. The 18th respondent neither filed a brief nor proffered any argument for or against the appeal. It claims neutrality in the raging battle between the appellants and the 1st – 17th and 18th respondents. The two issues distilled in the 19th respondent’s brief of argument for the determination of the appeal read:- “(i) Whether the trial Court had jurisdiction to entertain/grant reliefs ‘6’ and ’10’ introduced to the suit by amendment 21 days after election. (ii) Whether the lower court was not right when it held that the Appellants who are products of an illegal primary election had no right to be protected in a suit to compel INEC (Independent National Electoral Commission) to accept list of candidates submitted by the National Executive Committee of PDP.” PAGE| 6 At the hearing of the appeal, having identified their respective briefs, parties adopted and relied on them as arguments for or against the appeal. On their first issue, learned appellants’ counsel contends that Section 87of the 2010 Electoral Act as amended only provides remedies for pre-election complaints. The introduction of the 6th and 10th reliefs with the leave of court to further amend their originating summons twenty one days after the 26th April 2011 general election, it is argued, makes plaintiffs’ entire cause of action a post-election complaint which the trial court is bereft of jurisdiction to entertain. Relying on Hassan v. Aliyu (2010) 17 NWLR (pt 1223) 547 at 604 and Salim v. CPC (2013) 6 NWLR (pt 1351) 501, learned appellants’ counsel submits that the lower court’s affirmation of the decision of the trial court that proceeds without the necessary jurisdiction is legally untenable. He urges that the decisions of both courts be set aside. On their 2nd issue, it is contended that the rules of natural justice which requires that a person be heard before a decision against him is delivered, are constitutionally guaranteed. Grounds 3 and 6 of the appellants’ Notice of Appeal at the lower court, it is submitted, clearly raise the trial court’s error in breach of appellants’ right to fair hearing. Inspite of the trial court’s observation that the appellants were not before it, the court all the same wrongly proceeded to decide the matter against them. The lower court, submits learned appellants’ counsel, regrettably ran into the same error when it chose to pre-empt what appellants’ defence would have been if they had been joined. The duty of the lower court in the determination of the appeal before it, contends learned appellants’ counsel, is not to determine who the proper candidates of the 19th respondent, the P.D.P, are between the appellants and the respondents. Rather, the court’s task is to determine whether it is lawful for the trial court to hear and determine a suit and grant orders that affect the appellants who are not parties to the suit before that court. The lower court, further argues learned appellant’s counsel, wrongly applied the decisions of the Supreme Court in Emenike v. P.D.P. (2010) NWLR (Pt 1315) 551 at 602 and Emeka v. Okadigbo (2012) 18 NWLR (Pt 1331) 55 at 103. In the case at hand, it is submitted, only decisions of the apex in Okonta v. Phillips (2010) 18 NWLR (Pt 1225) 320 at 326 should inform the lower court’s decision. Relying also on Imegwu v. Asibelug (2012) 4 NWLR (pt 1289) 119 at 134, learned counsel concludes, the lower court’s decision that breaches Section 36(1) of the 1999 Constitution and equally stands in conflict with the decisions of this Court PAGE| 7 must be set-aside. He urges that both issues be resolved in their favour and the appeal allowed. All the respondents are one in their arguments in defence of the judgment of the lower court being appealed against. They contend that for the appellants to assert the denial of their right to fair hearing, they must establish that they are necessary parties to the suit. Until they establish their right to being joined in the suit in the first place, appellants cannot insist that they be heard at all. The test whether or not the appellants are necessary parties is whether without them the suit could effectively be determined. The 18th respondent against whom the 1st – 17th respondents commenced suit No. FHC/ABJ/CS/199/2011, it is contended, did not contest the claim. The amended originating summons, it is further argued, clearly show that the appellants neither participated in the primary election conducted by the National Executive of the 19th respondent nor were their names submitted to the 18th respondent by and as the former’s candidates in the general election. Indeed, it is further submitted, 19th respondent’s counter affidavit to 1st – 17th respondents’ further amended originating summons at pages 565-566 of vol. 1 of the record of appeal clearly show that the 19th respondent had protested 18th respondent’s acceptance of the list of appellants’ names from the Anambra State Executive Committee of the 19th respondent. Relying on Oladeinde & anor v. Oduwale (1982) NWLR 41, Green v. Green (1987) 3 NWLR (pt 61) 480 and Panalpina World Transport Ltd v. J. B. Olande & 3 ors (2010) NSQR 613, Learned counsel to the respondents insist that the lower court’s affirmation of the trial court’s grant of reliefs 1, 2, 4, 5 and 6 against the appellants remains extant. In any event, the non¬joinder of the appellants to the suit by order 9 rule 14(1) of the Federal High Court (Civil Procedure Rules) as interpreted in Sapo v. Sunmonu (2010) 11 NWLR 380 and Ayorinde v. Oni (2000) 3 NWLR (pt 649) 348 is an irregularity wrhich does not render the trial court’s proceedings a nullity. The leave granted the 1st – 17th respondents to further amend their originating summons after the general election, it is also contended, does not make the suit different from the pre-election cause that it is. After all, learned respondents’ counsel submit, an amendment duly made takes effect from the date of the original document. The further amendment, it is urged, does not make the decisions of this Court in Hassn v. Aliyu (supra), and Salami v. CPC (supra) applicable to the respondents’ claim. Relying inter-alia on Uzodinma v. Izunaso (No 2) (2011) 17 NWLR (pt 122) and Adewunmi v. AG, Ekiti State (2002) 2 NWLR (pt 751) 474 at 506, learned counsel to the 1st – 8th, 9th – 10th, 11th – 14th,15th – 17th and 19th respondents pray that the two issues be resolved against the appellants. Their appeal, too, they PAGE| 8 canvass, be dismissed. Now, a pre-election matter as the phrase connotes is a cause of action which predates and does not constitute any complaint against the actual conduct of an Election. In Amaechi V. INEC & ors (2007) 18 NWLR (Pt 1066) 42, this Court has held that issues of nomination and sponsorship of party’s candidates for an election precede the election and are therefore pre-election matters. A calm reflection at the 1st – 17th respondents’ amended originating summons, their 10th relief discounted, clearly reveals that it primarily questions the nomination and sponsorship of the appellants as candidates of their part}’, the 19th respondent, for the 26th April 2011 various constituency seats election. It as well protests INEC’s, the 18th respondent’s, unlawful acceptance of and reliance on the list of appellants names wrongly submitted to it by the State Executive Committee of the 19th respondent. Where, as in the instant case, a political part}/ conducts its primaries and a dissatisfied contestant at the said primaries complains about the conduct of the primaries, the courts have jurisdiction by virtue of Section 87(9) of the 2010 Electoral Act as amended, to examine if the primaries were conducted in accordance with the Electoral Act, the Constitution and Guidelines of the party. The courts’ jurisdiction thereunder impliedly extends to ensuring that INEC, the 18th respondent herein, in the performance of its statutory duty in conducting elections, accepts and relies only on the true and lawful list of candidates nominated and sponsored by the various political parties for the elections. In the case of the P.D.P, the 19th respondent herein, it must be conceded to the 1st – 17lh respondents, the list must be the one arising from the primaries conducted by the parly’s National executive. See Amaechi v. INEC & 2 ors (2008) 1 SCNJ 1; Senator Julius Ali Ucha v. Dr. Emmanuel Onwe & 4 ors (2011) 1- 2 SC (pt 1) 93; and Lado & 42 ors \ . C.P.C &53 ors (2011) 12 SC (pt 111) 113. Under their 1st issue, the appellants submit that the further amendment of 1st – 17th respondents’ originating summons some twenty one days after the conduct of the 26th April 2011 elections, makes the dispute between the parties a post-election dispute. Not being a pre-election dispute, the appellants contend, the lower courts lack the jurisdiction to enquire into and determine the suit. It cannot be. Learned counsel to the 1st – 17th respondents are right that the amendment effected to the originating summons following the leave sought and obtained from the trial court after the election in respect of which the court is, by the further amended originating summons, asked to pronounce who 19th respondent’s lawful candidates are, does not convert the suit from the pre-election cause that it is to a post election cause the appellants assert it to be. As rightly PAGE| 9 submitted by learned respondents’ counsel, an amendment takes effect not from the date it is ordered by the court but from the date of the original document the order of the court amends. In the case at hand, therefore, the further amendment of the 1st – 17th respondents originating summons relates back to the date when the originating summons was first filed rather than the date the order of the court for the amendment sought was made. See Mobil Oil v. IAL 36 (2000) 4 SCNJ 124, Adegoke Adewumi & anor v. A.G Ekiti State & 6 ors (supra) and S.P.D.C. (Nig) Ltd v. Chief Tigbara Edamkue & ors (2009) 6-7 SC 74. It follows from the principle enunciated by this Court in all these cases and more that 1st -17th respondents’ further amended originating summons, notwithstanding the reliefs introduced some twenty one days subsequent to the general election, remains a pre-election cause which the trial court by virtue of Section 87(9) of the Electoral Act 2010 as amended, is competent to determine. The competence of the trial court does not however extend to the claimant’s 10th relief since on the basis of the same principle, the relief being in respect of an election that was yet to occur is incompetent. In the circumstance, appellant’s 1st issue is accordingly resolved in favour of the respondents. Appellants’ 2nd issue for the determination raises the core question in their appeal. One outrightly agrees with learned appellants’ counsel that it is trite that where a person’s legal rights or obligations are challenged he must be given full opportunity of being heard before any adverse decision is taken against him with regard to such rights or obligations. This “Audi alteram partem” principle as guaranteed under Section 36(1) of the 1999 Constitution as amended remains a binding and indispensable requirement of justice applicable to and enforceable by all courts of law. The principle affords both sides to a dispute ample opportunity of presenting their case to enable the enthronement of justice and fairness. In the application of the principle, a hearing is said to be fair and in compliance with the dictates of the Constitution when, inter-alia, all the parties to the disputes are given a hearing or an opportunity of a hearing. If one of the parties is refused or denied a hearing or the opportunity of being heard, the court’s proceedings being perverse will be set aside on appeal. See Otajio v. Sunwonu (1987) 2 NWLR (pt 58) 587), Aladetoyinbo v. Adewumi (1990) 6 NWLR (pt 154) 98 Mohammed & anor v. Olawunmi (1990) 2 NWLR (pt 133) 485 and Olumesan v. Ogundepo (1996) 2 NWLR (pt 433) 628. In the case at hand, the 6th relief in the further amended originating summons granted the 1st – 17th respondent by the trial court, as affirmed by the lower court, is easily the most critical of the plaintiffs substantive reliefs. The entire suit hinges on this very relief. The other PAGE| 10 reliefs the trial court refused, including the 10th incompetent relief, are either not as defining or are merely consequential to the substantive reliefs. Notwithstanding the fact of the trial court’s refusal of the consequential reliefs, the lower court’s affirmation of the trial court’s grant of the most defining of the substantive reliefs, particularly the 6th, in their absence clearly stands in breach of the appellants’ right to fair hearing as provided for under Section 36 of the 1999 Constitution. The grant of the very relief unmistakably determines who, between the appellants and the 1st -17th respondents, are the lawfully nominated and sponsored candidates of the P.D.P, the 19th respondent, INEC, the 18th respondent, must, by law, place on the ballot for the 26th April 2011 Election. No matter how weak, unmeritorious or even unenforceable a party’s case appears to be in an adverse party’s claim, the party must be accorded a hearing or the opportunity of being heard regarding his seemingly unavailing case. See Adigun v. Attorney General Oyo State & ors (1987) 1 NWLR (pt 53 678 at 707 and Garba v. University of Maiduguri (1986) 1 NSCC 255. My lords, I am unable to agree with the learned respondents’ counsel that the decision of the trial court as affirmed by the court below does endure on the basis of order 9 rule 14 (1) of the trial court’s rules which provide that:- “No proceeding shall be defeated by reason of non joinder of parties, and a judge may deal with the matter in controversy so far as regards the rights and interest of the parties actually before him.” Lest we forget, it is a cardinal principle of interpretation that provisions of a statute should not be read in isolation. To avoid violence, the provisions must be read together. Thus in ascertaining the true meaning of the provisions of a statute the statute must be read as a whole. See Obayuwana v. Governor Bendel State and anor (1982) 12 SC 147 and Action Congress (AC) and anor v. INEC (2007) 12 NWLR (pt 1048) 222 at 259. Equally relevant to the proceedings of the trial court is sub-rule 3 of the same order 14 of its very rules which provide as follows: “(3) A judge may order that the name of any party who ought to have been joined or whose presence before the court is necessary to effectually and completely adjudicate upon and settle the questions involved in the proceedings be added” This Court in relation to the foregoing rules of court has persistently emphasized that a PAGE| 11 court on application or suo motu necessarily orders the joinder of a party where:- (a) the party is aggrieved or likely to be aggrieved by the result of the litigation to the extent that he will be directly, legally or financially affected by the result of the litigation. (b) to avoid multiplicity of suits arising from the same subject matter or res; (c) to enable the court fully, completely and effectually deal with the suit in order to frustrate or stop a possible future litigation on the subject matter; (d.) to ensure that the principles of fair hearing under section 36 of the 1999 Constitution as amended and the natural justice rule of Audi Alteram Partem are not breached, (e) to avoid loss of jurisdiction by the fact of non-joinder. See Uku v. Okumagba (1974) 3 SC 35; Oyedeji Akambi (Mogaji) & anor v. Okunlola Ishola Fabunmi &anor (1986) 2 SC 471; Green v. Green (1987) 3 NWLR (pt 61) 480 and IGE v. Farinde (1994) 7-8 SCNJ (pt 2) 284. The jurisdiction of a validly constituted court, it must always be remembered, connotes the limits imposed upon its power to hear and determine issues between persons seeking to avail themselves of its processes inter-alia by reference to:- (a) the subject matter of the issue or (b) the persons between wrhom the issue is joined or (c) the kind of relief sought. In the instant case, the jurisdiction of the trial court has been brought into focus in the way the court exercised its powers to hear and determine the 1st -17th respondents claim particularly their 6th relief The law remains that a court while duly constituted all the same loses its jurisdiction to proceed on the suit where:- (a) the action is not initiated by due process or (b) a condition precedent to the exercise of its jurisdiction has not been fulfilled. See National Union of Road Transport Workers & anor v. Road Transport Employers Association of Nigeria & 5 ors (2012) 1 SC (pt 11) 119. Section 36(1) of the 1999 Constitution as amended makes it a condition precedent that the appellants be heard or offered the opportunity of being heard in the matter otherwise the case not being initiated by due process the court is without the vires to hear and determine 1st – 17th respondents claim. Lastly, the 1999 Constitution which makes the joinder of the appellants in the suit PAGE| 12 mandatory remains the supreme law of this Country. By Section 1(1) & (3) of the very constitution, it prevails over Order 9 rule 14(1) of the Federal High Court (Civil Procedure) Rules being an inferior legislation in the event of any conflict between the two. See Awuse V. Odili (2003) 18 NWLR (Pt 851) 116. See Ekulo Farms Ltd & anor V. UBN Pic (2006) LPELR-SC 306/2001. It is for all these reasons that one agrees with learned appellants’ counsel that in the case at hand even though the two courts below are concurrent in their findings that the appellants do not deserve to be parties to the 1st – 17th respondents amended originating summons, the fact that the trial court’s decision has affected their rights makes the concurrent findings which stand in breach of section 36(1) of the 1999 Constitution as amended perverse. The lower court’s judgment cannot therefore persist. The decisions of the two courts below are hereby, in the result, set aside. See Onowhosa v. Odiuzou (1999) 1 NWLR (pt 586) 173 and Kulobo v. Ikuomola (1999) 12 NWLR (pt 629) 552. In conclusion, it must be stressed that courts have the duty to prevent the expensive luxury of multiplicity of suits by joinder to ensure the wholesome and effectual determination of the matter in a single suit. Thus where the determination of one of the claims of the plaintiffs will involve and affect a person’s legal right or property the person must necessarily be joined. It is unfortunate that in the case at hand the two courts below failed to discharge this important duty. In Green v. Green (supra) this Court has per Oputa held as follows:- “I am still of the same opinion that it would, with utmost respect, be iniquitous to determine a matter against a person without at least an attempt to hear him. If the court is to decide against the blood that flows through the veins of Solomon, surely, again with respect, decency, at least demands that he should be heard. To be heard, he must be a party. The sole aim of the court is to seek justice. True, it must be justice according to law, but when parties are available, who are so affected by a claim, pleading, evidence and a subsequent order would spell detriment, or indeed incalculable wrong, to what they consider their right, and they have either technically or inadvertently, been excluded from staring their own side of the story, it is with respect, waving goodbye to justice.” The issue before the two courts is not only whether the appellants who had emerged from the parallel primary conducted by the state executive body of the 19th respondent have a good case to press under Section 87(a) of the 2010 Electoral Act as amended. PAGE| 13 The issue is also whether, without a hearing or the opportunity of their being heard, the courts below, in view of Section 36 (1) of the 1999 Constitution as amended, lawfully proceeded to decide a claim which affects the appellants. We cannot run away from the obvious. The answer remains a resounding no to the second and indeed overriding question. Appellants’ second issue must thus, be resolved in their favour. Their appeal succeeds. The decisions of the two courts below having proceeded without the necessary jurisdiction are hereby set aside. I make no order as to costs.

SC 713/2013