WHAT IS THE PROPER TIME TO INSTITUTE A PRE-ELECTION MATTER: EFFECT OF NON-COMPLIANCE?

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CASE TITLE: YAHAYA v. UDI & ORS (2019) LPELR-47426(CA

JUDGMENT DATE: 6^TH MAY, 2019

PRACTICE AREA: ELECTORAL MATTERS

LEAD JUDGMENT: ABDULLAHI MAHMUD BAYERO, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Electoral Matters.

FACTS

This is an Appeal against the Judgment of the Federal High Court, Jalingo Division delivered by S. D. Pam J on 6th March 2019 in Suit No. FHC/JAL/CS/1/2019.

The facts of the case are that the Appellant and the 6th Respondent contested the primary election organized by the 7th Respondent for the purpose of selecting the 7th Respondent’s candidate for the 2019 General Election to the office of governor, Taraba State. The primary election took place on 2nd October 2018 and the 6th Respondent emerged victoriously and his form CF001 was submitted to the 5th Respondent by the 7th Respondent on 25th October 2018. The Appellant filed an action before the lower Court wherein they sought for an order disqualifying the 6th Respondent on the grounds that he had lied in his Form CF001.

The Appellant by an application dated the 15/02/2019 prayed for an order joining him as a defendant in the suit. The application for joinder was taken together with the substantive suit. On 6th March 2019 the lower Court held that since the Appellant did not file his action within 14 days as prescribed by Section 285 (9) of the 1999 Constitution (as amended), he was not entitled to the prayer sought.

Dissatisfied, the Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION

The Court determined the Appeal on the following issues:

Appellants issues:

1. Whether the trial Court was right to hold that the application for joinder of the Appellant is misconceived because the Plaintiffs/Respondents have no relief against the Appellant and consequently did not consider any of the processes filed by the Appellant at the trial.
2. Whether the trial Court was right and has accorded the Appellant fair hearing when it determined the Appellant’s application to be joined in the suit without considering the Appellant’s reply on point of law in support of the application.
3. Whether the trial Court was right that the application for joinder of the Appellant lies under the provisions of Section 87 of the Electoral Act 2010 (as amended) and therefore caught up by the provisions of Section 285(9) of the 1999 Constitution.
4. Whether the trial Court was right to have found that Sen. Joel Ikenya is a necessary party to the application for joinder filed by the Appellant and proceed to refuse the grant of the application for failure to join the said Senator Joel Ikenya in the application for joinder.
5. Whether the trial Court was right to have relied on the decision of Supreme Court in Saleh V. Abah (2017) 12 NWLR (Pt 1578) SC 100 to disqualify the 6th Respondent without binding itself by the same decision which stipulates that the runner-up of the primary election ought to replace the disqualified candidate.

Respondents(6th-7th) issue:

“Whether the learned trial judge was right when he refused the Appellant’s application for joinder. If the answer to the above is in negative, what then is the effect of the non-joinder by the trial Court.”

DECISION/HELD

In conclusion, the Court held that the appeal lacks merit and accordingly dismissed it.

RATIOS:

• ACTION- NECESSARY PARTY(IES): Who is a necessary party and effect of failure to join a necessary party in an action
• ELECTORAL MATTERS- PRE-ELECTION MATTERS: Proper time to institute pre-election matters; effect of non- compliance.