CORAM
UGOCHUKWU ANTHONY OGAKWU
MOHAMMED MUSTAPHA
FOLASADE AYODEJI OJO
PARTIES
CHIEF DAVID SHOLA AIYEDOGBON
APPELLANTS
HON. OLOBATOKE SEGUN SAMUEL & ORS
RESPONDENTS
AREA(S) OF LAW
APPEAL, ACTION, COURT, ELECTION PETITION, STATUTE, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
This is an appeal against the Ruling of the Federal High Court, Lokoja Division, delivered on 28th July 2022. he 1st Respondent herein, was the Plaintiff before the lower Court in an action which he commenced against the 2nd and 3rd Respondents herein, in SUIT NO. FHC/LKJ/CS/35/2022: HON. MATTHEW KOLAWOLE vs. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ANOR. The Appellant herein applied to be joined as a defendant in the action, by an application filed on 13th July, 2022. The application was opposed by the 1st and 3rd Respondents herein; and in its ruling, which was delivered on 28th July 2022, the lower Court dismissed the application. Peeved by the decision of the lower Court, the Appellant appealed against the same by Notice of Appeal filed on 2nd August 2022.
HELD
Appeal dismissed
ISSUES
Whether the Court is justified by dismissing the motion for joinder of the Appellant considering the joint provisions of Order 9 Rule 5 of the Federal High Court Civil Procedure Rules 2019, Article 20 of the 3rd Respondent’s Guidelines for Nomination of Candidates for the 2022 General Elections and Section 29(1) of the Electoral Act 2022. This issue is distilled from ground 1, 2, 3.
Whether the decision of the trial Court to dismiss the motion for joinder of the Appellant with cost awarded amounts to a breach of the Appellant’s constitutional right to fair hearing. This issue is distilled from ground 4, 5 of the grounds of appeal.
RATIONES DECIDENDI
LEAVE TO APPEAL – WHETHER AN APPELLANT MUST SEEK LEAVE OF COURT WHERE A GROUND OF APPEAL IS AGAINST COSTS – EFFE T OF FAILURE TO SEEK LEAVE
“Now, ground four of the grounds of appeal complains about the costs awarded against the Appellant by the lower Court. The Appellant has conceded that he did not obtain leave of Court to appeal against the costs awarded against him. Section 241 (2) (c) of the 1999 Constitution (as amended) stipulates as follows:
“(2) Nothing in this section shall confer any right of appeal –
(c) without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.”
Equally, Section 14 (1) of the Court of Appeal Act provides as follows:
“Where, in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter; an appeal shall, by leave of that Court or of the Court of Appeal, lie to the Court of Appeal; but no appeal shall lie from any order made ex parte, or by consent of the parties, or relating only to costs.”
In the recent decision of this Court in JANKADA vs. OLORUNTOBA (2022) LPELR (57058) 1 at 23-30, I was privileged to state the following on the vexed issue of an appeal against costs:
“Much ink has been spilled on the question of whether leave of Court is required when a ground of appeal on costs is one of several grounds of appeal raised against the decision of a High Court or the Federal High Court. In aliis verbis, whether leave of Court is necessary where the appeal is not as to costs only, id est, where costs is only one of the several grounds of appeal raised against a decision. The decisions of this Court straddle both sides of the spectrum. For instance, and to mention only a few, it has been held in OMAME vs. NIGERIA POLICE FORCE (2021) LPELR (54747) 1 at 9-10, GTB vs. ALEOGENA (2019) LPELR (46922) 1 at 13-15 and UNION BANK vs. TOYINBO (2008) LPELR (5056) 1 at 41-43 that where the ground of appeal on costs is only one of several other grounds of appeal, then leave of Court is not required for a ground of appeal on costs. Contrariwise, in some other decisions, again to mention a few, it has been held by this Court that irrespective of the number of grounds of appeal raised against a decision, so long as a ground on costs is involved, leave of Court will be required for the said ground of appeal on costs. See for instance: NICON INSURANCE CORPORATION vs. OLOWOFOYEKU (2005) LPELR (5946) 1 at 15-16, SPDC vs. MILLER (2013) LPELR (22872) 1 at 7 and SIDUS TELECOMMUNICATIONS ENGINEERING CORPORATION LTD vs. STANBIC IBTC (2020) LPELR (51629) 1 at 17-22.
The Appellant appealed on four grounds of appeal. It is only ground two that is in respect of costs. Grounds one, three and four are not in respect of costs. So the appeal is not in respect of costs only. In the circumstance, does the Appellant require leave to appeal on the said ground as to costs in line with the stipulations of Section 241 (2) (c) of the 1999 Constitution (as amended) and Section 14 of the Court of Appeal, Act? This Court has not spoken with one voice in this regard. Happily, the apex Court has been consistent in its position and based on the doctrine of stare decisis or binding precedent, I am obligated to kowtow and follow the decision of the apex Court. In MEKWUNYE vs. EMIRATES AIRLINES (2019) LPELR (46553) 1 at 8-9, Eko, JSC stated:
‘I am the least convinced that the very persuasive decision of the Court of Appeal in A.C.B. v. OKONKWO (1997) 1 NWLR (Pt. 480) 194 which applied the provisions of Section 220 (2) (c) of the 1979 Constitution, in pari materia with Section 241 (2) (c) of the extant 1999 Constitution, is not apposite. Section 241 (2) (c) of the Constitution does not intend to confer right of appeal, as of right, on the Appellant complaining about costs in an appeal from the High Court to the Court of Appeal. I completely endorse the statement of law on this by Ejiwunmi, JCA (as he then was) in A.C.B. v. OKONKWO (supra), to wit – A party cannot appeal on failure of the High Court to award costs without first obtaining the leave of either the Court of Appeal or of the High Court. This is the requirement of Section 220 (2) (c) of the 1979 Constitution. In this case, since the 1st Respondent did not obtain leave, the ground of appeal in the cross-appeal complaining against costs ought to be struck out and the issue formulated from it becomes a non-issue. Accordingly, I agree with the Appellant that the Respondent’s complaint in ground 4 of the Grounds of Appeal at the lower Court, from which the Respondent as the appellant at the lower Court formulated its issue 4, is incompetent having been raised without leave either of the trial High Court or the lower Court. This Court has been consistent on this point as can be seen from GOVERNOR, EASTERN NIGERIA V. ONYELU (1965) ALL NLR 690. The Court of Appeal followed the decisions in UNIFAM IND. LTD. v. OCEANIC BANK (supra); ASIM NIG. LTD. v. LBRDA (supra); ONUIGBO v. NWEKESON (1993) 3 NWLR (Pt. 283) 533 at 546. I will not depart from these precedents, at least on the doctrine of stare decisis.’
In contributing to the issue, Odili, JSC stated as follows at pages 74-76:
‘The question herein raised has brought into focus Section 241 (1) of the 1999 Constitution of the Federal Republic of Nigeria and Sub-section (2) (c) thereof provides thus: – “Nothing in this section shall confer any right of appeal – (c) without the leave of the Federal High Court or High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only”… On this issue of cost the Court of Appeal and the Apex Court have set the record straight thereof to the effect that an appeal complaining on the issue of cost is not as of right. I shall cite a few of those cases for effect. See Governor, Eastern Nigeria v Onyelu (1965) All NLR 197 at 198 … Adeyemi v Awobokun 1968 All NLR 690 where the position in the Onyelu case was adopted intoto. The Court of Appeal lately in Asims Nig. Ltd v LBRBDA (2002) 8 NWLR (Pt. 769) 349, held that “at any rate, Section 241 (2) (c) of the 1999 Constitution which corresponds with Section 220 (2) (c) of the 1979 … Constitution does not confer right of appeal on a party on issue of costs” per Muhammad, JCA (as he then was) at page 366, Para. D. The Court of Appeal reiterated the same legal position in Unifam Ind. Ltd v Oceanic Bank Intl (Nig.) Ltd (2005) NWLR (Pt. 911) 83 when it held that: – “a successful party is generally entitled to the cost of the litigation. However if a party is aggrieved by the order of a Court of law as it relates to cost, he does not appeal as of right. He must first seek and obtain the leave of Court before an appeal can be lodged against an order relating to cost” per Aderemi, JCA (as he then was) at page 102… Recently in Oketade v Adewunmi (2010) 3 (Pt. II) MJSC 31 where the appellant filed three (3) grounds of appeal (see page 39, paragraphs D-F thereof) the Supreme Court confirmed the above decisions of the Court of Appeal on the issue of costs when it held at page 42, paras. F-G and page 45, paras. C-E that: – “It is trite that appeal does not lie as of right against an award of costs by a Court. The cases of Unifam Ind. Ltd v Oceanic Bank Intl (Nig.) Ltd (2005) 3 NWLR (Pt. 911) 83 at 102 and Asims (Nig.) Ltd v Lower Benue River Basin Dev. Authority (2002) 8 NWLR (Pt. 769) 349 cited by learned counsel for the respondents are in point. I endorse the views ably expressed in both cases” per Fabiyi, JSC at page 45. The issue herein has been rested as the cases above cited show and so the Court of Appeal had no jurisdiction sequel to Section 241 CFRN to entertain the appeal on ground of legal costs without leave of either the trial Court or of itself, the Court of Appeal. See Onuigbo v Nwekeson (1993) 3 NWLR (Pt. 283) 533 at 546 (CA), A.C.B. v Okonkwo (1997) 1 NWLR (Pt. 480) 194 at 207 (CA).’
In keeping with the settled state of the law as laid down by the apex Court, since the Appellant did not obtain leave to appeal on costs, ground two of the grounds of appeal is hereby struck out and the issue number two formulated therefrom is equally struck out since it has become a non-issue, not having been distilled from a competent ground of appeal.”
The foregoing represents the state of the law as I understand it. Leave of Court, first had and obtained is a pre-requisite and condition precedent to appeal against an order of costs. Section 241 (2) (c) of the 1999 Constitution (as amended) has prescribed the manner in which an appeal against costs is to be made; the law remains that where leave to appeal is necessary, leave must be obtained in order for there to be a competent appeal or competent ground of appeal: OGEMBE vs. USMAN (2011) LPELR (8155) 1 at 24-25, OKOLONWAMU vs. OKOLONWAMU (2019) LPELR (46942) 1 at 28 and SYSTEMS APPLICATIONS PRODUCTS (NIG) LTD vs. B4G CONSULTING LTD (2021) LPELR (52808) 1 at 9-12. In the circumstances, ground four of the grounds of appeal is incompetent and it is hereby struck out.” – Per OGAKWU, JCA
ISSUE(S) FOR DETERMINATION – EFFECT OF AN ISSUE FOR DETERMINATION DISTILLED FROM BOTH AN INCOMPETENT AND A COMPETENT GROUND OF APPEAL
“The Appellant’s ground five of the grounds of appeal raises the issue of fair hearing. This is a valid ground of appeal. However, the Appellant in formulation of the issues for determination framed issue number two from both grounds four and five of the grounds of appeal. I have already held that ground four of the grounds of appeal is incompetent and struck the same out. The Appellant, having distilled his issue number two from grounds four and five of the grounds of appeal means that the said issue has been formulated from both an incompetent ground of appeal and a competent ground of appeal. It is hornbook law that where an issue for determination is distilled from both competent and incompetent grounds of appeal, it is not the duty of the Court to delve into the issue in order to excise or separate the arguments in respect of the competent grounds from the arguments in respect of the incompetent grounds. The Courts are not for such surgical procedures. See JEV vs. IYORTYOM (2014) 4 NWLR (PT 1426) 578 at 608, AGU vs. AYALOGU (1998) 1 NWLR (PT 532) 129, GEOSOURCE (NIG) LTD vs. BIRAGBARA (1997) 5 NWLR (PT 506) 607 and HASHIM vs. ASO SAVINGS (2022) LPELR (57061) 1 at 24-26. Such an issue is incompetent in its entirety and liable to be struck out: SEHINDEMI vs. GOV. LAGOS STATE (2006) 10 NWLR (PT 987) 1, ARIBO vs. CBN (2010) LPELR (4751) 1 at 29 and AJOBENA vs. MUJAKPERUO (2014) LPELR (23209) 1 at 12-13. Inexorably, the Appellant’s issue number two having been contaminated by the incompetent ground four, the said issue number two is ipso jure impotent and incompetent and the Court has no business whatsoever to deal with the issue. See WILKEY vs. OGIEGBAEN (2001) FWLR (PT 71) 1729 at 1739, EGBE vs. ALHAJI (1990) 1 NWLR (PT 128) 546, EBBA vs. OGODO (1984) 4 SC 84 at 112 and THE STATE vs. OLADIMEJI (2003) LPELR (3225) 1 at 8. Premised on the foregoing, the impotent and incompetent issue number two ought to play no further part in the consideration of this appeal and I will accordingly discountenance all the submissions made on the said issue.”- Per OGAKWU, JCA
COMMENCEMENT OF ACTION – WHETHER IT IS A PLAINTIFF(S) WHO DECIDES WHO TO SUE
“It is rudimentary law that in commencing an action, a plaintiff or claimant has the liberty of deciding who he wants to sue based on his perception of who has wronged him and who he therefore has a right to claim a relief against.”- Per OGAKWU, JCA
JOINDER OF PARTIES – CONDITION FOR A PARTY TO BE JOINED AS A DEFENDANT IN A SUIT
“The parties are agreed that in circumstances where a person desires to be joined as a defendant in an action at the lower Court, that the governing rule is Order 9 Rule 5 of the Federal High Court (Civil Procedure) Rules, 2019. The said Rule provides as follows:
“Any person may be joined as defendant against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative. Judgment may be given against one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment.” (underlining supplied)
The above stipulation is explicit that the joinder of a person as a defendant is not an order that is granted once an application for such an order has been filed. In order for an applicant to be joined as a defendant, he has to be a person against whom the right to any relief is alleged to exist. From the reliefs claimed by the 1st Respondent, the Appellant cannot be a person against whom the right to any of the reliefs can be alleged to exist, as a result of which he is not a necessary party in the action.”- Per OGAKWU, JCA
PARTIES TO A SUIT – DEFFERENCE BETWEEN PROPER PARTIES, DESIRABLE PARTIES AND NECESSARY PARTIES
“In the leading case of GREEN vs. GREEN (1987) LPELR (1338) 1 at 20, Oputa, JSC graphically explained the distinction between “proper parties”, “desirable parties” and “necessary parties” in the context of an application for joinder of parties as follows:
“Proper parties are those who, though not interested in the plaintiff’s claim, are made parties for some good reasons e.g. where an action is brought to rescind a contract, any person is a proper party to it who was active or concurring in the matters which gave the plaintiff the right to rescind. Desirable parties are those who have an interest or who may be affected by the result. Necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence the proceedings could not be, fairly dealt with. In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff. Amon v. Raphael Tuck & Sons (1956) 1 W. B. 357; Settlement Corporation v. Roshschild (No.21) (1959) 1 W.L.R. 1664; Re Vandervills Trust (1971) A C. 812; Re Vandervelle Trust (1969) 3 All E R. 497.”
”- Per OGAKWU, JCA
JOINDER OF PARTIES – CONDITIONS TO BE JOINED AS A PARTY TO A SUIT – MEANING AND NATURE OF NECESSARY PARTIES
“By all odds, the law is now well settled that for a person to be joined in an action, he must be someone whose presence is necessary as a party. What makes a person a necessary party is not, of course, merely that he has relevant evidence to give on some of the questions involved. That would only make him a necessary witness but not a necessary party. It is also not merely that the person has an interest in the correct solution of some questions involved and has thought of some relevant arguments to advance. That would mean that an infinite variety of persons could claim to be entitled to be heard in a case. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and his presence before the Court may be necessary in order to enable the Court effectively and completely adjudicate upon and settle all the questions involved in the cause or matter. See AMON vs. RAPHAEL TUCK & SONS LTD (1956) 1 Q.B. 357 at 380, PEENOK INVESTMENT LIMITED vs. HOTEL PRESIDENTIAL (1982) 12 SC 1, IGE vs. FARINDE (1994) 7 NWLR (PT 354) 42 at 50, JIA ENTERPRISES LIMITED vs. BRITISH COMMONWEALTH INSURANCE CO. LIMITED (1962) 1 ALL NLR (PT 2) 363, BELLO vs. INEC (supra) and UKU vs. OKUMAGBA (1974) All NLR (PT 1) 475.” – Per OGAKWU, JCA
JOINDER OF PARTIES – PRINCIPLES GOVERNING WHETHER A PARTY SHOULD BE JOINED TO A SUIT
“In expounding the principles governing the issue of joinder of parties in AZUBUIKE vs. PDP (2014) LPELR (22258) 1 at 16-17, Fabiyi, JSC stated:
“This Court per Oputa, JSC in the same case of Green v. Green (1987) 3 NWLR (Pt. 60) 480 laid it down that in order to decide the effect of non-joinder or misjoinder of a party, the Court should ask itself the following questions: (a) Is the cause or matter liable to be defeated by non-joinder? (b) Is it possible to adjudicate on the cause or matter unless the 3rd party is added as a defendant? (c) Is the 3rd party a person who should have been joined in the first instance? (d) Is the 3rd party a person whose presence before the Court as a defendant will be necessary in order to enable the Court to effectually and completely adjudicate or settle all the questions involved in the cause or matter?”
See also APC vs. UDUJI (supra), ONEMU vs. COMMISSIONER FOR AGRICULTURE & NATURAL RESOURCES, ASABA (2019) LPELR (47391) 1 at 22-23 and BELLO vs. INEC (supra) at 77 where Adekeye, JSC intoned:
“In determining whether to join a person as a defendant in a suit, the Court will consider the following questions that is: a) Is it possible for the Court to adjudicate upon the cause of action set up by the plaintiff unless the person is added as a defendant? b) Is the person someone who ought to have been joined as a defendant in the first instance. c) Is the cause or matter liable to be defeated for non-joinder? These questions must be answered in the affirmative for the joinder to be justifiable.”
”- Per OGAKWU, JCA
RIGHT OF FAIR HEARING – ON WHEN THE BREACH OF FAIR HEARING CAN BE RAISED
“The complaint of breach of fair hearing can only be raised and avail a litigant when in fact the right had been denied. See ADEBAYO vs. A-G OGUN STATE (2008) 7 NWLR (PT 1085) 201 at 205-206 or (2008) LPELR (80) 1 at 23-24, MAGAJI vs. NIGERIAN ARMY (2008) LPELR (1814) 1 at 40 and ORUGBO vs. UNA (2002) 16 NWLR (PT 792) 175 at 211 and 212.”- Per OGAKWU, JCA
PRIMARY ELECTION – ON WHEN AN ASPIRANT CAN CHALLENGE THE CONDUCT OF A PARTY’S PRIMARY ELECTION
“Section 84(14) of Electoral Act, 2022 provides as follows:
“Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court for redress.”
The above provision provides a window for any aspirant who is dissatisfied with the conduct of the primary election of his party on the ground that the provisions of the Electoral Act and/or his party’s Guidelines have been breached to ventilate his grievance at the Federal High Court. See EZE VS. PEOPLES DEMOCRATIC PARTY (2019) 1 NWLR (PT. 1652) 1; PEOPLES DEMOCRATIC PARTY VS. ORANEZI (2018) 7 NWLR (PT. 1618) 245; ZAKIRAI VS. MUHAMMED (2017) 17 NWLR (PT. 1594) 181; JEV VS. IYORTYOM (2015) 15 NWLR (PT. 1483) 484. …
The law is settled that where a statute provides for the manner of doing a particular act, only the manner specified by the Statute will suffice. See ABUBAKAR VS. YAR’ADUA (2008) 19 NWLR (PT. 1120)1: AKUNEZIRI VS. OKENWA (2000) 15 NWLR (PT. 691)526; UDE VS. NWARA (1993) 2 NWLR (PT. 278)638; UNIVERSITY OF NIGERIA TEACHING HOSPITAL MANAGEMENT BOARD VS. NNOLI (1994) 8 NWLR (PT. 363) 376.
The Appellant can only validly challenge the conduct of his party’s primaries by instituting an action as Plaintiff at the lower Court. The application for joinder filed by him is thus a nullity and an abuse of judicial process.” – Per OJO, JCA
ABUSE OF COURT PROCESS – PROPER ORDER THE COURT WILL MAKE WHERE THE ISSUE ABUSE OF COURT PROCESS IS FOUND
“The law is settled that once a Court is satisfied that any proceedings before it is an abuse of judicial process it has the power and indeed the duty to dismiss it.
See NWOSU VS. PEOPLES DEMOCRATIC PARTY (2018) 14 NWLR (PT. 1640) 532; DINGYADI VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2011) 10 NWLR (PT. 1255) 347; LADOJA VS. AJIMOBI (2016) 10 NWLR (PT. 1519) 87; OGBORU VS. UDUAGHAN (2013) 13 NWLR (PT. 1370) 33; ONYEABUCHI VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2002) 8 NWLR (PT. 769) 47.
The application of the Appellant to join as Co-Defendant in an action instituted by the 1st Respondent is an improper use of judicial process. It was filed in contravention of the provisions of Section 84(14) of the Electoral Act (supra). It is an abuse of Court process and I so hold. The lower Court was therefore right when it dismissed it.” – Per OJO, JCA
CASES CITED
Not Available
STATUTES REFERRED TO
1999 Constitution of the Federal Republic of Nigeria
Federal High Court (Civil Procedure) Rules, 2019