BY EKENE ANINZE.
All over the jurisprudence of developing nations, the brain child of establishing the judiciary as an institution, is to foster hope and remedies to the common man, uphold the sanctity of the law, serve as checks to the excesses of other arms of government and most importantly, dish out the meal of justice without fear or favour. Chiefly above it’s duties and functions is justice. A decision borne out of justice and devoid of technicality chairs the business of the judiciary. This is so owing to the fact that justice is the major actor and key player in the corridor of every progressive judicial arm.
Joseph Story while addressing the need for justice commented thus “Without justice being freely, fully, and impartially administered, neither our persons, nor our rights, nor our property, can be protected. And if these, or either of them, are regulated by no certain laws, and are subject to no certain principles, and are held by no certain tenure, and are redressed, when violated, by no certain remedies, society fails of all its value; and men may as well return to a state of savage and barbarous independence.”
The obvious purport of the above comment, is to the effect that the whole duty of the judiciary revolves around justice. Hence it amounts to a breach of judicial duty where the judiciary hides behind the shield of technicalities, in order to defeat the merit of good cases from witnessing the daylight of victory. The recent case of Jegede v Akeredolu critically examines the point in view, as it goes a long way in explaining how the courts, sometimes, choose the lonely path and leeway of technicalities thereby divesting itself the opportunity of dispensing justice to cases solely on their merit.
THE FACTS OF JEGEDE V AKEREDOLU.
The fact of the case was that election was conducted by the Independent National Electoral Commission (INEC) on the 10th of October 2020. Many parties fielded their candidates in the election which at the end, INEC declared the incumbent APC governor Rotimi Akeredolu as the winner of the election for a second term, thereby defeating PDP Eyitayo Jegede, ZLP Agboola Ajayi and several minor party candidates. The candidate of PDP in the election, Eyitayo Jegede brought a petition challenging the competence of Akeredolu nomination/sponsorship, claiming that by virtue of the provisions of Section 183 of the constitution of Nigeria 1999 ( as amended) and article 17 (4) of the All Progressive Party constitution, the caretaker Chairman of APC, his Excellency Malam Buni acted unlawfully being the Yobe State Governor at same time the APC Caretaker chairman Committee who signed the nomination/sponsorship form submitted by Gov. Rotimi Akeredolu and his deputy Lucky Aiyadtiwa. The provisions of section 183 of the constitution of Federal Republic of Nigeria expressly states that the Governor shall not, during the period when he holds office hold any other executive position office, or paid employment in any capacity whatsoever. On the other hand, Article 17(4) of All Progressive Constitution states that no officer in any organ of the party shall hold any executive position office in government concurrently. Thus it was the prayer of Eyitayo Jegede and his party that the candidature of Gov Akeredolu be nullified on the ground that Gov. Malam Buni signed his nomination/sponsorship while acting in dual capacity as both the Caretaker Chairman of APC and at the same time Gov. of Yobe state which offends the aforementioned provisions of the law.
After a legal battle that saw it’s way from the cradles of the election tribunal down to the Supreme Court. The Supreme Court while airing their opinion on whether Gov. Malam Buni acted unlawfully when he signed the Nominatio/ sponsorship form of APC candidate, Rotimi Akeredolu formed a unanimous opinion on the point that by necessary provisions of Section 183 of the constitution of the Federal Republic Nigeria 1999 (as amended) and article 17(4) of APC constitution, that the All Progressive Party ought not to have allowed Gov. Malam Buni to officiate in the capacity of a caretaker Chairman committee and at the same time the Gov. of Yobe State. The seven-man justices further agreed that the conduct of Gov. Malam Buni offended the necessary provisions of section 183 of the constitution and article 17 (4) of APC constitution. However, the court divided against itself when it made a great mountain out of a molehill on the issue of joinder. The apex court was split to four (4) against three(3) Justices on the issue of whether the joinder of Gov. Malam Buni was a major necessity to the success of the case. On the over-flogged issue, Justice Agim who read the majority judgment, along side with John Okoro, Lawal Garba and Tijani Abubakar concurred on the fact that the non joinder of Gov. Malam Buni was a major catastrophe that must crumble the case. In his words, Justice Agim held thus “since Jegede and PDP made Buni the center of their allegation of constitutional breaches, he ought to have been made a party in the case to enable him defend himself in line with the doctrine of fair hearing”. Thus the majority of the learned Justices of the apex court dismissed the case on the sole issue of joinder as against the opinion of other three justices who agreed that joinder shouldn’t be made a serious issue that should defeat the case since the claim was against APC and Gov. Akeredolu and not the caretaker Chairman.
NOW WHEN DOES JOINDER BECOME AN ISSUE IN LAW?
Joinder of party is is basically seen as the uniting of parties in a single law suit (Blacks Law Dictionary, 9th edition).
In law, there is no gainsaying that there is always a concern while filing a suit as to whether all the parties concerned have been taken into account or not. However, It’s apt to submit that the position of the learned Justice of the supreme Court on joinder of Gov. Malam Buni as a necessity for the success of the case under discourse is not convincing. This is so owing to the fact that the principles of law in respect to joinder of parties have been laid to rest in plethora of judicial precedents and it’s to the effect that a person can only be joined in a suit when it will be impossible for the court to fully dispense the matter in issue.
The requirements of joinder of parties were carefully laid down in Adefarasin v Dayekh (2007) 11 NWLR pt 1044, and one of the major consideration in that case is that joinder will only be necessary when it will be impossible for the court to adjudicate the cause of action set up by the plaintiff, unless the third party is added as defendant. In Ezionwu v Egbo (2006) 5NWLR [Pt. 973], the issue of joinder of parties was properly considered by the court when it held that a person who ought to be joined in a proceeding has to be someone whose presence is very necessary as a party.
The court continued by saying that 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. Therefore unless the foregoing reason exists in relation to a person vis-a vis a suit, the issue of joinder would not arise’. Considering the law in respect to the case in view, it’s ably submitted that when Gov. Malam Buni signed the nomination/sponsorship form of Gov. Akerodolu and his deputy as the substantive APC candidates in the October 10th election 2020, he did not sign the form in his personal capacity as an individual, he acted in pursuant to the powers conferred on him by the APC National Executive Council which was chaired by the president of Nigeria as APC leader.
Hence whatever pronouncement the court would have made, would have been binding to the All Progressive Party and not Gov. Buni as a person. It’s submitted that it wouldn’t have been a serious hard nut that Gov. Malam Buni was not joined in the suit because having joined APC as a second respondent to the suit, the suit was aptly competent. It’s further submitted that the position of majority justices that the failure to join the caretaker Committee Chairman, Gov. Buni was detrimental to his right of fair hearing is unconvincing and unsupported, this is because the principles of fair hearing would have been called into question where the remedies sought by Jegede was against Malam Buni and not APC, the all progressive party is a legal entity bearing an artificial legal personality of it’s own and those that acts on it’s behalf ought to have been shielded under it’s legal umbrella.
Again, the majority reasoning of the court in dismissing the case was not legally attractive and convincing. This is because the position of the law as laid down in Akanni v Olaniyan (2006) 8 NWLR Pt. 983, is to the effect that once a person has standing to sue, his failure to join a defendant does not and cannot defeat the action if the cause or matter in controversy can be determined as between the parties.
The claim of Jegede and PDP was not for the apex court to nullify the caretaker chairmanship of Gov. Buni, but to nullify the Governorship candidature of Gov. Akerodolu for having been nominated and signed outside the due process of law. Hence it was possible for the majority Justices of the supreme court ably led by Justice Agim to have properly dispensed the issue without joining the APC caretaker Chairman committee as a necessary party.
Again, since the relief sought by Jegeded and PDP was against Gov. Akeredolu and APC party who happened to be the first and second respondents respectively, it was not necessary to have joined Gov. Buni as the APC caretaker Chairman committee because he would have been indirectly legally bound by the decision of the supreme court. This submission is strengthened by the reasoning of the apex court in Fawehinmi v NBA (1999) 2 NWLR Pt. 105 at P.510 when it held that a person whom a plaintiff has no cause of action and against whom he has no claim cannot be be joined as a co-defendant or made a party to the action.
The apex court would have divested itself of technicalities by following the leading minority judgment of Justice Mary Peter Odili when she stated that by virtue of Section 183 of the Constitution of Nigeria 1999 (as amended) and article 17 (4) of the APC constitution, Gov. Buni acted unlawfully when he signed the nomination/sponsorship of Akeredolu and thus, the All Progressive Party ought to have lived by the consequences of the above lawlessness.
In conclusion, although the place of joinder of parties in any cause of action cannot be over emphasized, owing to the fact that it’s always necessary for the court to properly make a one time pronouncement that binds all parties that have interest in the matter for all ages.
However, it’s a retrogression of judicial activism and progressivism for a competent matter that have properly witnessed the presence of all necessary interested parties to be defeated and sacrificed at the altar of joinder. At best, the court at the onset of the case at tribunal would have exercised it’s discretional power judicially and judiciously by ordering Gov. Buni to be joined as the caretaker chairman, this is strengthened by the judicial pronouncement of the court in Crown Floor Mills LTD v Olokun (2008) 4 NWLR Pt.1077 when it held that the court has the inherent power to join any party whose Interest would be affected and whose presence will enable the issues to the suit to be effectually determined once and for all.
Again, when one tends to take into consideration the immunity clause under section 308 of the constitution of the Federal Republic of Nigeria that shileds Gov. Buni from being joined in his personal capacity as a necessary party to any suit by virtue of him being the incumbent governor of Yobe state, the court would have prevented itself from using joinder as a banana peel to defeat the merit of the case since APC was competently joined as a necessary party.