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ALL PROGRESSIVES GRAND ALLIANCE (APGA) APPELLANTS

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1. ENGR. (MRS.) ONYEIWU UCHENNA UBAH

2. MR. CHIKWEN ONUOHA INDEPENDENT ELECTORAL COMMISSION (INEC)

RESPONDENTS 

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AREA(S) OF LAW

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SUMMARY OF FACTS

This is a sister appeal to appeal No. SC.451/2019. In the primary election conducted by the 2nd Respondent, both the Appellant/1st Defendant and 1st Respondent/Plaintiff, claimed to have won the said election, but upon conclusion of the said primary election, the 1st Respondent was declared winner. Along the line and in a surprising twist of event, the name of the 1st Respondent who won and was declared winner of the primary election was missing on the list published by the 3rd Respondent. The 1st Respondent stated that she made several efforts to persuade the 2nd Respondent to rectify the act of forwarding the name of the 1st Respondent to the 3rd Respondent all to no avail, hence she approached the trial Court to seek redress. At the conclusion of the trial, the learned trial judge found the case of the 1st Respondent meritorious and gave judgment in her favour.

Dissatisfied with the decision of the trial, the Appellant unsuccessfully appealed to the Court of Appeal hence a further appeal to this Honorable Court contending that the failure of the 1st Respondent to produce any result sheet showing that she actually won the election, suggests that she has failed to discharge the burden of proof placed on her to prove her assertion that she scored the highest number of votes at the primary election, that the 1st Respondent as Plaintiff at the trial court did not sue the proper party and having proceeded with a non-juristic person, the suit should be struck out.

 

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HELD

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Appeal Dismissed

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ISSUES

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Not Available

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RATIONES DECIDENDI

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NON-JOINDER OF A PARTY TO A SUIT- WHETHER THE NON JOINDER OF A PARTY TO A SUIT RENDERS THE ACTION A NULLITY

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“I must say that the Appellant has taken this principle beyond measure. Thank God that he acknowledged the fact that it was a wrong name used and clearly means and demonstrates that he was in no wise deceived and misled. Per Adekeye, JSC in Bello v. INEC & ORS (2010) LPELR-767(SC) , in a similar scenario addressed such a mistake of joinder of party or misnomer thus:
The failure to join as a party a person who ought to have been so joined gives rise to the mistake of non-joinder of party. The fact that a necessary party to the action has not been joined will not render the action a nullity. The proceedings of a Court of law will not be a nullity on the ground of lack of competence of the Court of lack or jurisdiction merely because a plaintiff fails to join a party who ought to have been joined. The Court cannot dismiss a suit because a party who ought to have been joined was left out.”

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MISNOMER – MEANING OF A MISNOMER

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“Misnomer in this sense means, simply, a wrong use of a name. If the entity intended to be sued exists but a wrong name is used to describe it that, in my judgment, is a misnomer. See Per Ayoola, JSC in Maersk Line & Anor v. Addide Investments Ltd & Anor (2002) LPELR-1811(SC). It is a mistake in name, i.e. giving incorrect name to a person in the writ of summons. It occurs when a mistake is made as to the name of a person who sued or was sued or when an action is brought by or against the wrong name of a person.”

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MISNOMER- NATURE OF A MISNOMER THAT WILL VITIATE A PROCEEDING

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“When both parties are quite familiar with the entity envisaged in a Writ of Summons and could not have been misled or have any real doubt and misgiving as to the identity of the person suing or being sued, then there can be no problem of mistaken identity to justify a striking out of the action. A misnomer that will vitiate the proceedings would be such that will cause reasonable doubt as to the identity of the person intending to sue or be sued. See Per Okoro, JSC in Registered Trustees Of The Airline Operators Of Nig v. NAMA (2014) LPELR- 22372 (SC).”

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Evidence Act, 2011

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