Chief Emmanuel Bello Vs Independent National Electoral Commission & 2 Ors (2010)
LAWGLOBAL HUB Lead Judgment Report
MOHAMMED, J.S.C.
The Appellant in this appeal was the Plaintiff at the trial Federal High Court Abuja where by Originating Summons dated 21st February, 2007, he instituted an action against the 1st and 2nd Respondents as the Defendants. By a motion on notice supported by affidavit filed at the Court on 28th February, 2007, the Appellant sought the leave of the Court to amend the Originating Summons by filling an Amended Originating Summons which removed the name of the 2nd Respondent as a Defendant in the action, leaving the 1st Respondent alone to defend the action. The grounds or questions for determination and the relief being sought in the original action were also amended. The parties were duly heard on this application for amendment and the application granted. The Amended Origination Summons in the action between the Appellant as Plaintiff and the 1st Respondent as the Defendant dated 1st March, 2007 was subsequently heard. After hearing the parties, the trial Court delivered its judgment on 4th April, 2007 granting all the three specific relief sought by the Appellant against the 1st Respondent.
However, on 5th June, 2007, by a motion on notice filed at the trial Court, the 2nd Respondent, the name of which was removed from the Appellant’s action as originally filed on the orders of the trial Court, sought for an order to set aside the judgment of the trial Court of 4th April, 2007. The Appellant opposed the application and after hearing the parties, the learned trial Judge came to the conclusion in his ruling delivered on 20th July, 2007, that the judgment of the trial Court given on 4th April, 2007 was a nullity and therefore proceeded to set it aside. The Appellant’s appeal against the setting aside of that judgment was heard and dismissed by the Court of Appeal Abuja Division in its judgment delivered on 17th December, 2008. Not satisfied with the judgment of the Court of Appeal, the Appellant has now appealed against it on four grounds of appeal from which his learned senior Counsel identified two issues for the determination of the appeal as follows:-
“(i.) Whether the judgment of the trial Court delivered on 4th of April, 2007 amount to nullity as a result of non- joinder and therefore liable to be set aside by the same Court at the request of 2nd Respondent (sic) who was the person not joined (Grounds 1, 2 and 3).
(ii) Whether the judgment of the trial Court was a default judgment liable to be set aside at the instance of a person who was not party to the proceedings.”
It is observed that although the 1st Respondent, Independent National Electoral Commission which was the sole Defendant in the proceedings resulting in the judgment of 4th April, 2007, the setting aside of which at the instance of the 2nd Respondent that gave rise to the present appeal was represented by a team of learned Counsel at the hearing of this appeal, no Respondent’s brief was filed on its behalf. Leading Counsel to the 1st Respondent merely told this Court that his client was ready to abide by the out-come of the appeal. However, in the Respondent’s brief of argument filed by the 2nd Respondent, only one issue for determination was formulated from the Appellant’s four grounds of appeal. The issue reads –
“Whether in all the circumstance of this case the lower Court was not justified in upholding the decision of the Federal High Court, Abuja Division setting aside her judgment delivered on 4th day of April, 2007”
In the same vein, the learned senior Counsel for the 3rd Respondent also saw only one issue for determination which was framed thus –
(1.) “Whether the decision of the lower Court is justified in law having regard to the facts and circumstances of the case.”
Since the complaint against the setting aside of the judgment of the trial Court of 4th April, 2007 by the same Court at the instance of the 2nd Respondent is a common factor in the two issue formulated in the Appellant’s brief of argument, I shall take the arguments in support of the two issues together. This is because whether or not the judgment of the trial Court of 4th April, 2007 was set aside on the ground of being a nullity or on the ground of its being a default judgment as stated in the two issues in the Appellants brief, the end result of the setting aside of that judgment is the central issue for determination.
Mr. Rickey Tarfa, learned senior Counsel for the Appellant has observed that it is not in dispute between the parties in this appeal that 2nd Respondent was not a party to suite of the Appellant at the trial Court on the Amended Originating Summons which by law was deemed to have taken effect from date of filling Originating Summons on 21st February, 2007. This view was supported by the cases of Rotimi v. Mcgregor (1964) N.S.C.C. page 542 at 552 line 1 – 16 and Katio v. C.S.N. (1995) 5 S.C.N.J. Page 21 lines 36; that the trial Court and the Court of Appeal appeared to have placed more emphasis on the first Originating Summons in which the 2nd Respondent was a party; that the effect of the order granting the amendment is that the 2nd Respondent had ceased to be a party in the Appellant’s action; that not being a party in the action, the 2nd Respondent could not have availed itself of the provisions of Order 38 Rule 9 of the Federal High Court (Civil Procedure) Rules 2000, to apply to set aside the judgment of 4th April, 2007 not being a party, having regard to the decisions in Green v. Green (1987) N.S.C.C. 115 at 129 and Fawehinmi v. N.B.A. (No. 1) (1989) 2 N.W.L.R. (Pt. 105) 494 at 550. Learned senior Counsel therefore argued that since the 2nd Respondent was not a party to the case that led to the judgment, the only remedy available to it was to appeal against that judgment with the leave of the trial Court or of the Court of Appeal as a party having interest in the case under Section 243(a) and (b) of 1999 Constitution and Order 7 of the Court of Appeal Rules 2007; that even if the 2nd Respondent were a necessary party to the action, failure to join it as a party was not fatal to the case to the extent of rendering the judgment of the trail Court a nullity if the of cases of Ayorinde v. Oni (2000) F.W.L.R. (Pt. 3) 445 at 464 and Okoye v. Nigerian Construction and Furniture Co. Ltd. (1991) 2 N.S.C.C. 422 at 438, are taken into consideration. Learned senior Counsel concluded by submitting that since the 2nd Respondent was not a party at the trial Court in the action, the judgment of the trial Court of Appeal was in error in its judgment of 17th December, 2008 now on appeal, in affirming the decision of the trial Court setting aside the judgment of 4th April, 2007 and therefore urged this Court to allow the appeal.
It appears from the contents of paragraph 1.2 of the Respondent’s brief of argument filed for the 2nd Respondent; the 2nd Respondent is an unwilling party which had been forced by circumstances of this case to defend the judgment of the Court of Appeal in this Court. Paragraph 1.2 of the Respondent’s brief reads at page 1 –
“Facts on pages 419 – 426 show clearly the unwillingness of the 2nd Respondent to be party to or to continue to be party of the appeal at the lower court because the matter
relates to dispute between her members over nomination. Having been made a party against her desire and a judgment entered in her favour, it becomes necessary and desirable to defend the judgment. No more, no less.”
For the above reasons given in defending the judgment of the Court below in this Court, the learned Counsel for the 2nd Respondent in support of the lone issue for determination as distilled in the 2nd Respondent’s brief of argument explained that since the 2nd Respondent is the party that has the right in law to sponsor its candidate to contest any election, it was a necessary party to the Appellant’s action against the 1st Respondent challenging his substitution as a candidate in the elections; that failure to join the 2nd Respondent in the action clearly robbed the trial Court of its jurisdiction to adjudicate in the matter thereby making the judgment of the trial Court of 4th April, 2007 a nullity; that the judgment being a nullity, the 2nd Respondent has the right to apply to the trial Court to have that judgment set aside as the relief granted to the Appellant were directly against the interest of the 2nd Respondent; that looking at the case from another angle, since the order made by the trial Court of 4th April, 2007 was against a person who was not a party in the Appellant’s case, the judgment was a nullity by virtue of the decisions of this Court in Adenuga v. Odumero (2003) 8 NWLR (Pt. 821) 127 at 188 and Kekerowo v. Lagos State Government (2001) 11 NWLR (pt. 123) 246. Learned counsel relying on the cases of Ifezue v. Nbadugha (1984) 1 SCNLR 247, Odi v. Osafile (1985) 1 NWLR (pt.1) 17, Green v. Green (1987) 3 NWLR (pt. 61) 480 and Eke v. Ogbonda (2006) 18 NWLR (pt. 1012) 526, pointed out that a person who was affected by an order which can be described as a nullity, as the 2nd Respondent in the present case, is entitled ex-debito to justitae, to have the order set aside. Referring to the case of Okoye v. Nigerian Construction and Furniture Company Limited heavily relied upon by the Appellant, learned counsel observed that the case is not applicable in the present case whose facts are different and whose situation calls for need to do justice to the 2nd Respondent are different and whose situation calls for need to do justice to the 2nd Respondent rather than hanging on technicalities to cause a miscarriage of justice. Counsel therefore urged this Court to consider the modern trend in Okoiyo v. Odje (1985) 10 SC 267 and Nwosu v. Imo State Environmental Sanitation Authority & Ors. (1990) 2 NWLR (pt. 135) 688 at 717, and do justice in this case by dismissing this appeal.
For the 3rd Respondent, its learned senior Counsel Mr. D. D. Dodo, is of the view that having regard to the facts and circumstances of this case, the decision of the Court below in affirming the decision of the trial Court setting aside its judgment of 4th April, 2007, is quite justified in law; that where a party who ought to have been joined in a suit but was not joined and an order was made affecting the party, the party so affected by the decision is entitled to ex-debito justitiae to have it set aside as was done in the present case in line with decision in Afric Mining Co. Ltd. v. NIDB Ltd. (2000) 2 NWLR (pt. 646) 626. It was observed by the learned senior Counsel that the original action filed by the Appellant on 21st February 2007, the 2nd Respondent was clearly a party therein; that by withdrawing the case against the 2nd Respondent in the Amended Originating Summons, the 2nd Respondent was deliberately denied a hearing in a matter in which it was a necessary party whose interest were clearly seen in the orders made by the trial Court on 4th April, 2007 thereby justifying the application by the 2nd Respondent to set aside the judgment; that the trial Court has therefore inherent power to set aside that judgment by virtue of many decisions of this Court including Menakaya v. Menakaya (2001) (2001) 16 NWLR (pt. 738) 255, – without resorting to any appeal against the judgment because the judgment or ruling was a nullity. On when a judgment of a superior Court can be declared a nullity, learned senior Counsel referred to Rossek v. ABC Ltd. (1993) 8 NWLR (pt. 312) 437 – 438 and urged this Court to hold that since the 2nd Respondent and 3rd Respondent who were necessary parties in the Appellant’s case were not heard, the Court below was right in law in affirming the decision of the trial Court setting aside the judgment of 4th April, 2007, and therefore urged this Court to dismiss the appeal since the failure of the Appellant to have joined the 2nd and 3rd Respondents as parties to the action, was fatal to the action thereby depriving the trial Court of competence or jurisdiction to have determined the action. A number of cases such as Rossek v. ABC Ltd. (supra); Mozie v. Mbamalu (2006) 7 SCNJ 411 at 423; Adisa v. Oyinwola (2000) 6 SCNJ 322 and Henry Awoniyi v. The Registered Trustees of the Rosicrucian Order of Amorc (Nigeria) (2000) 6 SCNJ 14, were brought to the attention of the Court in support of this submission. In concluding his submissions, learned senior Counsel for 3rd Respondent stressed that the fact that the orders of the trial Court of 4th April, 2007 had affected the rights of the 2nd Respondent, that alone had given the 2nd Respondent the competence to apply and set aside that judgment having regard to decisions in Societe General Bank Nigeria Limited v. Adewumi (2003) 10 NWLR (pt. 829) 526; Delta State Government v. Dr. Okon (2002) 2 NWLR (pt. 752) 682; Edun v. Odan Community (1980) NSCC 279; Emi Trading Services Limited V. Yuriy (1998) 11 NWLR (pt. 573) 284 and Adeniyi v. Police Commission (1967) 1 ALL NLR 67.
As I have earlier observed in this judgment, the main issue calling for determination in this appeal is whether the judgment of the Abuja Division of the Federal High Court or trial Court given on 4th April, 2007 was a default judgment which is also a nullity as affirmed on appeal by the Court of Appeal by virtue of the non service of the originating processes on he 2nd Respondent which was entitled as of right, to apply to the trial Court and have that judgment set aside. The law regarding the position of any judgment or order of Court which is a nullity for any reason whatsoever is that the Court in its inherent jurisdiction is entitled ex-debito justitiae to have that judgment or order set aside on the application of an affected or aggrieved party or even suo-moto. See Ademuluyi & Anor. v. African Continental Bank Ltd. (1965) NWLR 24; Obinmonure v. Erinosho (1966) 1 ALL NLR 250; West African Auto-Mobile & Engineering Co. Ltd. v. Ajanaku (1972) 2 UILR. 335; Skenconsult H. (Nigeria) Ltd. v. Ukey (1981) 1 SC 6 and Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (pt. 109) 250. In other words on the applicable procedure, the Court in exercise of its inherent jurisdiction, can set aside its own judgment or order which is a nullity without necessarily resorting to appealing against that judgment or order by the affected party. What I have to determine in this issue is whether or not the judgment of the trial Court of 4th April, 2007 is truly a nullity as found by the trial Court and affirmed by the Court of Appeal.
In the present case, the grounds upon which the 2nd Respondent went to the trial Court to have the judgment of that Court of 4th April, 2007 set aside, are set out in its application quoted in the Ruling of the trial Court of 20th July, 2007 at pages 155 – 156 of the record where the 2nd Respondents claims are stated –
1) An order extending time within which the Defendant/Applicant may apply to set aside the judgment of the Court dated 4th day of April, 2007
2) An order to Court setting aside the entire proceedings and the judgment of the Court dated 4th day of April, 2007 against the Defendant.
3) Any other order(s) as this Honourable Court may deem fit to make the circumstances.
The prayers were predicted on two (2) grounds:
a) Failure to serve the 2nd Defendant/Applicant the Originating Process or any Processes in this suit.
b) Breach of the Fundamental rights of fair hearing of the Defendant/Applicant.
After hearing the parties on the application, the learned trial judge came to the conclusion that its judgment of 4th April, 2007 was a nullity and therefore proceeded to set it aside on the application of the 2nd Respondent described in the application as a “Defendant/Application.” The relevant part of the ruling of the trial Court at pages 167 – 168 of record reads –
“On the final issue, Order 38 Rule 9 of the Federal High Court Civil Rules 2000 provides:
“Any judgment obtained where on party does not appear at the trial may be set aside by the Court upon such terms as may seem just, upon an application made within six days after the trial or within such longer period as the Court may allow for good cause shown.”
The Court certainly has power to set aside a default judgment. As it is, this is a default judgment that affected the interest of a necessary party who was initially made a party but whose name was withdrawn by the Plaintiff possibly to shield it from the proceedings. The failure to include a necessary party in a suit has been held to be fatal to the case of a plaintiff and robs the court of jurisdiction.
See Ezionwu vs. Ugbo (2006) 5 NWLR party 973 316 at 328 329.
A Court cannot make an order against a non-party.
See Adenuga vs. Odumeru (2002) 8 NWLR party 821 163 at 187 – 188.
On the whole, I uphold the applicants Motion for the reasons stated above. The judgment delivered on the suit of 4th April, 2007 is hereby set aside.
When the Appellant appealed against the ruling of the trial Court to the Court of Appeal, the only issue that was placed before that Court for determination was –
“Whether the trial Judge was not in error when he set aside his judgment of 4th April, 2007 upon an application by persons who were not parties and who did not apply to be joined in the proceedings”.
In resolving the long issue for the determination of the appeal the Court of Appeal agreed with the Respondents that the trial Court was right to have given the 2nd Respondent the right of hearing and setting aside the default judgment particularly when that judgment and the earlier withdrawal, were not served on the party, the 2nd Respondent. The Court below also agreed with the findings of the trial Court on the affidavit evidence before it that the judgment of 4th April, 2007, was ab-initio a nullity which could have been set aside without much ado. Therefore, in dismissing the Appellant’s appeal, the Court below was also of the view that since the judgment of the trial Court was a nullity, the 2nd Respondent, as a party which was affected by the order of the trial Court which order is a nullity, is entitled, ex-debito-justitiae to have that judgment set aside.
The first question for determination in the present appeal from the single issue earlier identified in this judgment is whether the 2nd Respondent was a party to the Appellant’s action and proceedings in the Amended Originating Summons that culminated in the judgment of 4th April, 2007, which is the subject of this appeal. In Green v. Green (1987) NSCC. 115 at 121, Oputa JSC had cause to define parties as –
“Persons whose names appear on the record as Plaintiff or Defendant”.
Similarly, in Fawehinmi v. NBA (No.1) (1989) 2 NWLR (pt. 105) 494 at 550, Oputa JSC again in defining ‘a party’ had this to say –
“A party to an action is a person whose name is designated on record as Plaintiff or Defendant, the term party refers to that person(s) by or against whom a legal suit is sought.
Whether a natural or legal persons but all others who may be affected by the suit indirectly or consequently are persons interested and not parties.
It is quite clear from the record of the trial Court that although the 2nd Respondent was a party to the Appellant’s action in the 1st Originating Summons filed at the trial Court as the 2nd Defendant in the action, the steps taken by the Appellant as the Plaintiff in the action by an application under the rules of the Court to drop the 2nd Respondent as a Defendant in the action, was duly granted by the Court resulting in deeming the Amended Originating Summons with Independent National Electoral Commission as the only Defendant in the action, as duly filed and served. The Amended Originating Summons at pages 46 – 47 of the records clearly reflects the parties in the action as the Appellant’s being the Plaintiff while INEC was the only Defendant. Therefore the 2nd Defendant in the first Originating Summons filed by the Appellant, had by the process of the amendment to the Originating Summons granted by the trial Court on 1st March, 2007, ceased to be a party or a Defendant in the action. The reason given by the Appellant in his affidavit in support of the amendment to the Originating Summons was that having received additional facts in connection with his action, he decided to drop the name of the 2nd Respondent and the claims against it from the action. In other words by the amendment, the Appellant was saying that he had no dispute with his party the 2nd Respondent since the action as framed against the 1st Respondent alone was sufficient for his purpose. The Appellants case in the amended Originating Summons was therefore heard against the 1st Respondent alone as the Defendant. The record of proceedings at the hearing which culminated in the judgment of the trial Court of 4th April, 2007 reflected only the Appellant and the 1st Respondent as parties in the case and no more. In short, the 2nd Respondent was not a party in the action that gave birth to the judgment of the trial Court of 4th April, 2007 which is the subject of the present appeal. It was therefore wrong for the trial Court and the Court below to have approached and treated this case on the basis that the 2nd Respondent was a party in the case at the trial Court which was entitled to have been heard.
In the determination of the question of who were the parties in the action heard on the Amended Originating Summons by the trial Court, it is also relevant to examine the questions asked for determination by the trial Court and the reliefs sought by the Appellant as Plaintiff against INEC as the only Defendant. The question for determination and the reliefs sought as framed are as follows at pages 46 – 47 –
Whether by virtue of Sections 6(6) (b), Section 36, 65, 66 of the 1999 Constitution and Section 32 of the Electoral Act, 2006, the list of indicted persons by EFCC without being found guilty by any Court of law can constitute the basis of disqualification of the Plaintiff or a candidate for the Gombi/Hong Federal Constituency of Adamawa State for the April, 2007 general election, by the Defendant.
- If the answer to issue 1 is in the negative: Whether the Defendant can insist that any person whose name appear in the said list must be changed or substituted having regard to Section 34(1) (2) of the Electoral Act.
Whereof the Plaintiff seeks the following reliefs:
a. An order setting aside the decision of the Defendant to rely on list of indicted persons which include the Plaintiff as basis of disqualification
b. An order direction the Defendant having first screened and cleared the Plaintiff, to restore the Plaintiff’s name unlawfully and illegally removed by the Defendant.
c. An order of injunction restraining the Defendant, its agents and servants from tempering or doing anything of like nature with the name of the Plaintiff already submitted to the Defendant by his party as the candidate to the Federal House of Representatives for Gombi/Hong Federal Constituency of Adamawa State in the forthcoming April, 2007 general election.
As can be seen from the questions for determination above, all the Appellant wanted to know is whether the 1st Respondent could rely on the list of the alleged indicted persons containing the name of the Appellant, to disqualify him from contesting the election as member of the House of Representatives for Gombi/Hong Federal Constituency of Adamawa State. All the three reliefs sought by the Appellant were against the 1st Respondent namely, to set aside its decision to rely on the EFCC list of indicted persons to disqualify the Appellant, order on the 1st Respondent to restore the Appellant’s name unlawfully and illegally removed by the 1st Respondent, and an injunction restraining the 1st Respondent and its agents from tampering with the name of the Appellant already submitted to the 1st Respondent by his own Political Party the 2nd Respondent to contest the election. Thus, from the questions for determination and the reliefs sought in the action as framed in the Amended Originating Summons heard and determined by the trial Court, the Appellant as the Plaintiff had o quarrel or dispute whatsoever with his Political Party, the 2nd Respondent which forwarded his name to the 1st Respondent that screened and cleared him to contest the election. As no relief was sought directly against the 2nd Respondent which was not a party in the action and as the reliefs granted by the trial Court in its judgment of 4th April, 2007 also did not directly affect the 2nd Respondent coupled with the absence of any evidence on record showing that the 2nd Respondent was no longer in support of the Appellant as its own candidate in the election held on 21st April, 2007 before that election was held, the trial Court and the Court below were clearly in error in regarding the 2nd Respondent as a party in the Appellant’s case. This is because the Amended Originating Summons by law is deemed to have taken effect from the date of filing the first Originating Summons on 21st February, 2007. See Rotimi Mcgregor (1964) NSCC 542 at 552.
The next question for determination is whether or not the 2nd Respondent was right in going to the trial Court to apply for the setting aside of the judgment of 4th April, 2007 in the circumstances of this case. From the motion on notice filed by the 2nd Respondent on 5th June, 2007 at the trial Court asking for the setting aside of the judgment of that Court of the 4th April, 2007, the reliefs sought and the two grounds upon which the application was brought, were as follows:
1) An order extending time within which the Defendant/Applicant may apply to set aside the judgment of the Court dated 4th day of April, 2007
2) An order to Court setting aside the entire proceedings and the judgment of the Court dated 4th day of April, 2007 against the Defendant.
3) Any other order(s) as this Honourable Court may deem fit to make the circumstances.
The two grounds upon which the application was brought are –
a) Failure to serve the 2nd Defendant/Applicant the Originating Process or any Processes in this suit.
b) Breach of the Fundamental rights of fair hearing of the Defendant/Applicant
The records show that at the end of the hearing of this application, the trial Court in its ruling of 20th July, 2007, held that its judgment of 4th April, 2007 was a nullity because it affected the interest of the 2nd Respondent which was not put on notice being a necessary party in the case and that the failure to join the 2nd Respondent in the suit had robbed the trial Court of its jurisdiction. The ruling of the trial Court setting aside its judgment of 4th April, 2007 on the grounds stated by the Court was affirmed on appeal by the Court of Appeal resulting in the present appeal.
The question to be answered now is whether or not the judgment of the trial Court of 4th April, 2007 is a nullity having regard to the circumstances of this case. In the first place the 2nd Respondent which applied to set aside the judgment on the ground that it was a Defendant in the action and that it was not put on notice, is not the correct position from the record of this appeal. The 2nd Respondent was indeed not a party in the case. Not being a party in the action of the Appellant as framed in the Amended Originating Summons, there was no obligation on the part of the trial Court to have put the 2nd Respondent on notice. Consequently, failure to put the 2nd Respondent which was not a Defendant in the action on notice was not fatal to the case of the Appellant at the trial Court to the extent of depriving that Court of its jurisdiction in the case, not to talk of resulting in rendering its decision in the case, a nullity. It was indeed a misconception of the state of the law for the trial Court to have regarded the 2nd Respondent, against which there was no specific relief claimed in the action as a Defendant which ought to have been put on notice. For the same reason, the accusation of the 2nd Respondent that the trial Court denied it its Fundamental Right of fair hearing in an action in which it was not a party, has not basis at all in law.
Learned Counsel to the 2nd Respondent who stated in his brief of argument which was initially unwilling to participate in the Appellant’s action at the trial Court and the appeal at the Court below in an attempt to remain neutral in the dispute between its members on the question of nomination of candidates for the April 21st 2007 election, found itself defending the judgments of the trial Court and the Court below in the present appeal because both judgments were in favour of the 2nd Respondent. That is why the learned Counsel found himself as he explained, agreeing with the Court below that any order made by a Court against a person not a party to a case is a nullity and liable to be set aside upon an application by the person affected. This line of argument seems to agree with the real position of the 2nd Respondent in this case of not being a party to the case but that the judgment affected its interest which gave it the right to apply to the trial Court to have the null judgment of 4th April, 2007 set aside. However, the judgment of the Court below appeared to have gone even further to state that an application by the person affected may not even be necessary before the judgment may be set aside. This is what the Court said in its judgment at page 453 of the record –
“It is unthinkable as postured by the Appellant that the 2nd Respondent, the PDP, that put the name of the Appellant to INEC, the 1st Respondent would not be affected by a judgment and orders concerning that nomination within the 2nd Respondent whose flag would be flown at the election proper. It is for that crucial position that a joinder of 2nd Respondent needs not be applied for nor granted before the judgment without the 2nd Respondent would be set aside”.
With utmost respect, this is not the correct position of the law on the subject where a Court of law gives judgment or order against a person who is not a party in the case. The remedy of such a person lies in availing himself of the provisions of the 1999 Constitution where Section 243(a) and (b) state –
“243. Any right of appeal to the Court of Appeal from the decision of the Federal High Court or a High court conferred by this constitution shall be
a) exercisable in the case of civil proceedings at the instance of a party thereto, or with leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or; subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings at the instance of such other authorities or persons as may be prescribed.
b) Exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.”
In the present case, it is not at all in doubt that having regard to the nature of the dispute between the Appellant and the 1st Respondent as contained in the Amended Originating Summons adjudicated upon and determined by the trial Court, the 2nd Respondent being the Political Party that forwarded the name of the Appellant to the 1st Respondent to contest the election before the alleged disqualification and substitution of the Appellant’s name by the 1st Respondent relying on the EFCC list of indicted persons containing the name of the Appellant, indeed qualified as a person having interest in the matter heard and determined by the trial Court in its judgment of 4th April, 2007. As from the date of this judgment, the orders in which were not directly addressed to the 2nd Respondent but specifically beamed at the 1st Respondent which was a party, the 2nd Respondent which was a party to the action, but whose interest is directly in issue, had two options open to it
1) It may stay put and decide to abide by the judgment of the trial Court particularly being responsible in the first place of forwarding the name of Appellant to contest the election as its candidate or,
2) Apply to the same trial Court for leave to appeal to the Court of Appeal within the time prescribed for appealing against the judgment or after the expiration of that time, apply to the Court of Appeal for extension of time to seek leave to appeal, leave to appeal and extension of time to appeal against the judgment as a person having an interest in the matter.
It is apparent from the record of this appeal, particularly the observation of the learned Counsel to the 2nd Respondent in his Respondent’s brief of argument that the 2nd Respondent initially did not want to participate in the case at the trial Court and the Court below, that the 2nd Respondent opted for the first option of staying put by abiding with the judgment of the trial Court. This explains its inaction on the matter until 5th June, 2007 some weeks after the election of 21st April, 2007 to go to Court with the application to set aside the judgment. Whatever, prompted the 2nd Respondent to challenge the judgment of the trial Court of 4th April, 2007 of which it was not a party but a party or a person having interest in the matter, ought to have come properly to join in the case as a party before it could have found the appropriate platform to attack the judgment on appeal which could have yielded the same relief of setting aside of that judgment if the grounds for doing so have been established to justify the Court of Appeal granting the relief:
I may observe at this stage that the misconceived course taken by the 2nd Respondent in this case is similar to the course adopted by the Plaintiffs in the case of Okoye v. Nigerian Construction and Furniture Co. Ltd (1991) 2 NSCC Vol. 22 part 422 also reported in (1991) 6 NWLR (Pt. 199) 501 at 532 where this Court held that failure to join as a party a person who ought to have been joined will render the proceedings a nullity on ground of lack of jurisdiction or competence of the Court. Akpata JSC specifically stated the position as follows:-
“In my view failure to join a necessary party is an irregularity which does not affect the competence or jurisdiction of the Court to adjudicate on the matter before it. However, the irregularity may lead to unfairness which may result in setting aside the judgment on appeal. Setting aside a judgment or making an order striking out the action or remitting the action for a retrial in such circumstance that will not be for lack of jurisdiction or the basis of the judgment being a nullity. The trial Court itself is incompetent to review the judgment; more so another Court of co-ordinate jurisdiction.
See also – Laibru Ltd. v. Building & Civil Engineering Contractors (1962) 2 SCNLR 118; Ekpere v. Aforije (1972) 1 All NLR (pt. 1) 220 referred to an applied (pp.530 para. H).
It is quite clear that the whole approach of the 2nd Respondent to the Appellant’s action in which it was not a party resulting in the motion at the trial Court to set aside the judgment and the appeal at the Court of Appeal against the setting aside of the judgment of 4th April, 2007, the 2nd Respondent and unfortunately the two Courts below, laboured under a fundamental misconception of the assumed rights of the 2nd Respondent which regarded itself as a party to the Appellant’s action against the 1st Respondent and as such the 2nd Respondent thought that it was entitled to be put on notice of the case and proceedings thereof claiming that the failure to have done so, should lead to the setting aside of the judgment. The position of the law is well settled that no cause or matter shall be defeated by reason of mis-joinder or non-joinder of parties and the Court may in every cause or matter deal with the matter in controversy so far as regards the rights and interest of the parties actually before it. See Peenock Investment Ltd. v. Hotel Presidential (1982) 12 SC1.
It is also observed that one of the reasons for setting aside the judgment of the trial Court of 4th April, 2007 is that it is a default judgment. It was not only the 2nd Respondent which filed its application to set aside the judgment that regarded it as a default judgment under Order 38 Rule 9 of the Federal High Court (Civil Procedure) Rules, 2000, but that both the trial Court and the Court of Appeal also proceeded on the basis that the judgment is a default judgment. A default judgment is one given in default of appearance or pleadings against a Defendant or a Plaintiff in a cross-action whose names appear as such Defendant or Plaintiff in the record of the trial Court.In the instant case where the Appellant and the 1st Respondent who were the only parties as Plaintiff and Defendant in the action were present or duly represented by their learned Counsel before the trial Court throughout the proceedings up to the point of judgment in question, that judgment cannot be described as a default judgment. It is clearly a judgment on the merit which in law, can only be set aside on appeal. See Alapa v. Sanni (1967) NMLR 397. The Courts below are therefore in error in regarding and treating the judgment of the trial Court of 4th April, 2007 as a default judgment capable of being set aside by the trial Court on the application of the party not heard at the hearing.
Having regard to the circumstances of this case, the appropriate remedy for the 2nd Respondent if it wants to still challenge the candidature of the Appellant in the 21st April, 2007 election, is for it to avail itself of the remedy under section 243(a) and (b) of the 1999 Constitution as a person having interest in the matter. I may wish to observe at this stage that the cases relied upon by the Respondents is in this appeal in support of their submissions that the judgment of the trial Court of 4th April, 2007 was a nullity, are all cases in which persons who were parties to an action and who were therefore entitled to service of the initiating process and other processes or notice of hearing had not been served at all. The cases have no relevance to the present case in which the 2nd Respondent which was not a party in the case was complaining of not being put on notice. In the same vain, the case of Adenuga v. Odumeru (2002) 8 NWLR (pt. 821) 163 also relied up on by the Respondents where this Court decided that a Court of law has no power to make an order against the interest of persons who were not parties before it as such an order is not in law binding on such parties, is also not relevant to the present case as no specific order was made against the interests of the 2nd Respondent in the judgment of the trial Court of 4th April, 2007 as no interest of the 2nd Respondent was made known as at the date of the judgment regarding the nomination of the Appellant to contest the election as the candidate of the 2nd Respondent.
On the whole, taking into consideration that the main ground upon which the 2nd Respondent challenged the judgment of 4th April, 2007 as being a nullity was the failure of the trial Court to put it on notice for the hearing of the matter, as it has been shown quite clearly from the record of this appeal that the 2nd Respondent was infact not a party in the case, the ground for regarding the judgment of the trial Court as being a nullity has been completely swept away thereby justifying the Appellant’s appeal being allowed. The appeal has merit and it is therefore allowed. The Ruling of the trial Court of 20th July, 2007 setting aside the judgment of the trial Court of 4th April, 2007 which decision was affirmed on appeal by the judgment of the Court of Appeal of 17th December, 2008 are hereby set aside. In place of the Ruling and Judgment of the Courts below now set aside there shall be entered an order striking out the 2nd Respondent’s motion filed at the trial Court on 5th June, 2007, asking the trial Court to set aside its judgment of 4th April, 2007, as that Court has no jurisdiction to do so.
I do not regard it as appropriate having regard to the circumstances of this case to make any order on costs.
SC.330/2008
