Independent National Electoral Commission & Anor V. Hon. C. I. D. Maduabum (2008)

LawGlobal-Hub Lead Judgment Report

JIMI OLUKAYODE BADA, J.C.A.

This is an appeal against the Ruling of the Federal High Court, Abuja Nigeria, delivered on the 19th day of April 2007 in Suit No. FHC/ABJ/CS/90/2007 – Independent National Electoral Commission (INEC) vs. Hon. C. I. D. Maduabum.

The learned trial Judge after hearing the application to set aside the default Judgment of the Court and striking out of the Suit brought by the 2nd Defendant now 2nd Appellant refused it on the ground that the application lacked merit.

Dissatisfied with the said Ruling the 2nd Appellant now appealed to this Court.

The Learned Counsel for the 2nd Appellant formulated three issues for determination as follows:-

“(1) Having joined the 2nd Appellant as a party to the action, was the trial Court competent to set aside the Order of joinder.

(2) Whether the learned trial Court was right when it refused to set aside its Judgment of 14th March 2007 in default of appearance.

(3) Whether the learned trial Judge had jurisdiction to entertain the action.”

The learned Senior Counsel for the Respondent adopted the 1st Issue for determination identified by the 2nd Appellant in his brief of argument and in the course of argument demonstrated that the 2nd Appellant is not competent to argue the other issues namely issues 2 and 3, as identified by him.

In the determination of this appeal, the issues as set out on behalf of the Appellant are considered relevant and apt.

At the hearing, Learned Counsel for the 2nd Appellants adopted and relied on the 2nd Appellant’s brief and reply brief of argument while Learned Senior Counsel for the Respondent relied on the two briefs filed on behalf of the Respondent on 11/6/07 and 28/2/08 respectively.

Issue 1

Having joined the 2nd Appellant as a party to the action, was the trial Court competent to set aside the Order of joinder.

Learned Counsel for the 2nd Appellant referred to the record of proceedings which showed that the application for joinder filed on behalf of the 2nd Appellant on 16th April 2007 was taken and granted on 17th day of April 2007 without any objection.

But on the 18th April 2007, when the matter came up again, it was discovered that the application for joinder taken on 17/4/07 was taken in error because the case was not listed for hearing on that day and the proceedings of 17/4/07 was therefore set aside.

The application for joinder was now taken all over again on 18th April 2008 along with the application for setting aside the default Judgment.

In its Ruling the trial Court refused and dismissed the application to set aside default Judgment and the Application for joinder was consequently struck out.

The learned Counsel for the 2nd Appellant now submitted that having ordered the joinder of the 2nd Appellant on the 17th day of April 2007 the Court became functus officio as an Order for joinder was a final decision.

Learned Counsel stated that it is only the Court of Appeal that can set aside the Order for joinder. He relied on the cases of:-

Onwuka vs. Maduka (2002) 18 NWLR Part 799 Page 586 at 612 Paragraph A-C.; Sken Consult (Nig) Ltd v. Ukey (1981) NSCC Page 1; Akporue & Others vs. Okei & Others (1973)NSCC Page 479; Orowere & Others vs. Abiegbe & Others (1973) NSCC Page 479; Uku & Others vs. Okumagbi (1974) NSCC Page 128.

Learned Counsel finally submitted that the order setting aside the Order of Joinder of the 2nd Appellant was null and void, he urged this Court to make an Order that the 2nd Appellant is a proper party to the Suit.

On the other hand, the Learned Senior Counsel for the Respondent submitted that every Court of law has the jurisdiction to set aside an Order made by it if that order is made in error or by mistake or without jurisdiction or without proper service or hearing the other side. Learned Senior Counsel relied on the following cases:-

S.A. P. Nig Ltd vs. Central Bank of Nigeria (2004) 15 NWLR Part 897 Page 663 at 688; A.C.B. Plc vs. Losada (Nig) Ltd (1995) 7 NWLR Part 405 Page 26 at 48; Ukachukwu vs. Uba (2005) 9 NWLR Part 930 Page 370 at 389.

He submitted that the said Order of Joinder which was rightly set aside by the learned trial Judge deserved to be set aside given the irregular manner by which it was obtained.

In order to appreciate the issue in controversy in this Appeal, it is necessary at this juncture to examine the facts which brought about the situation in which the parties in this Appeal found themselves.

On the 16th day of April 2007 the 2nd Appellant filed a motion in which he sought to be joined as an interested party in the proceedings. (See pages 118 to 122 of the record). The motion had neither been served nor allotted date when it was erroneously listed for 17th day of April 2007 contrary to Order 9 rule 18 of the Federal High Court Rules which provides that:-

“Unless the Court gives special leave to the contrary, there shall be at least two clear days between the service of a motion and the day named in the notice for hearing the motion.”

The motion was called up in the absence of the Respondent and his Counsel. However a junior Counsel in the chambers of Learned Senior Counsel engaged to defend the action, even though he neither had the file nor any instruction from Respondent’s Counsel appeared in Court, he did not oppose the application and it was granted.

The following day, the 18th day of April 2007, being the actual date the case was fixed for, the Respondent’s Senior Counsel came to the Court and was informed that the matter came up on the 17th day of April 2007. He then applied to have the proceedings set aside and the matter taken afresh since the matter was not fixed for 17th April 2007.

At the hearing, the Court Ruled as follows:-

“……. I shall set aside proceeding of yesterday since the error was from the registrar and direct that both parties to the motion to set aside, adopt their briefs and Counsel for joinder argues his application afresh today.”

It is trite that a Court cannot treat a date fixed for mention as a date fixed for hearing. And if a Court cannot hear a case on a day it fixed the matter for mention, a fortiori, it cannot have jurisdiction to hear the matter on a day it never fixed the matter at all.

Furthermore, contrary to the submission of learned Counsel for the 2nd Appellant that having ordered the joinder of 2nd Appellant on 17th day of April 2007 that the Court became functus officio, I do not agree with that submission and my humble view is that a Court undoubtedly has the jurisdiction and duty to set aside its decision which was given without jurisdiction. It can also set aside its judgment or order which is a nullity.

In Ukachukwu VS. Uba (supra) this Court held as follows:-

“A Court can set aside its judgment in any of the following five instances and circumstances:-

(a) When the judgment is obtained by fraud or deceit either in the Court, or of one or more parties. Such a judgment can be impeached or set aside by means of an action which may be brought without leave. (Alaka vs. Adekunle (1959) LLR Page 76; Olufunmise vs. Falana (1990) 3 NWLR Part 136 Page 1 referred to)

(b) When the judgment is a nullity, a person affected by an Order of Court which can properly be described as a nullity is entitled ex debito justitiae to have it set aside (Sken Consult Ltd VS. Ukey (1981) 1 SC Page 6; Ogueze VS. Ojiako (1962) 1 SCNLR Page 112; Okabor vs. VS. A.G. Anambra State (1991) 6 NWLR Part 200 Page 6591;

(c) When it is obvious that the Court was misled into giving judgment under a mistaken belief that the parties consented to it.

(Agunbiade vs. Okunoga (1961) All NLR Page 110; Obinonure VS. Erinosho (1966) 1 All NLR Page 250 referred to)

(d) Where the judgment was given in the absence of jurisdiction;

(e)Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication.

Also in Anatogu vs. Iweka II (1995) 8 NWLR Part 415 Page 547 at 586 the Supreme Court, per Ogwuegbu JSC, held;

“If a judgment or order has been obtained by fraud, a fresh action will lie to impeach the judgment”

See also – A.C.B Plc VS. Losada (Nig) Ltd (Supra).

S. A. P. (Nig) vs. Central Bank of Nigeria (Supra).

In view of the foregoing, since the application for joinder filed on 16/4/07 was not fixed for 17/4/07 i.e, the date it was taken and given the irregular manner in which the order of joinder was obtained, the learned trial Judge was in my view right to have set the said order aside.

This issue is therefore resolved against the 2nd Appellant and in favour of the Respondent.

Issue 2

Whether the learned trial Court was right when it refused to set aside its Judgment of 14th March 2007 in default of appearance.

The Learned Counsel to the 2nd Appellant stated that the default Judgment affected the 2nd Appellant and that this is enough ground for the trial Court to have set aside the Default Judgment of 14th March 2007.

He relied on Order 28 Rule 7 (1) and (9) of the Federal High Court Rules 2000.

He also relied on the following cases:-

C.O.P v. Iheabe (1998) 11 NWLR Part 575 Page 666 at 678.679 Paragraph G-H and H.A; Rufai v. Out (1998) 12 NWLR Part 578 Page 423 at 434 Paragraph 6; William VS. Hope Rising (1982)1-2 SC Page 145; Akiarboga vs. Akinsole (1998) 3 NWLR Part 540 Page 101; Mohammed vs. Husseini (1998) 14 NWLR Part 584 Page 130.

The learned Counsel for the 2nd Appellant stated that the power to set aside a default Judgment is both inherent as well as statutory. He submitted that the refusal to set aside the default judgment was a miscarriage of Justice and he urged that the Ruling of the trial Court dated 19th day of April 2007 be set aside.

The learned Counsel for the Respondent in his reply submitted that the 2nd Appellant is not competent to argue this issue for determination as he was not a party on record at the material time. He was not the Defendant against whom the Judgment was given nor the Applicant whose application to set aside was refused.

He also submitted that the motion on notice to set aside the Judgment of the Court below was lacking in merit, and consequently the learned trial Judge was right in refusing the said application. He referred to the case of: Sanusi vs. Ayoola (1992) 9 NWLR Part 265 at Page 275.

The issue for determination here is whether the learned trial Judge was right in refusing the application of the Defendant to set aside the Judgment of the Court entered on 14th March 2007.

As at 14th March 2007 when the Judgment in dispute was delivered, the 2nd Appellant was not a party to the Suit, therefore I agree with the submission of the Learned Senior Counsel for the Respondent that the 2nd Appellant was not competent to argue this issue because he was not the Defendant against whom the Judgment was given nor the Applicant whose application to set aside Default Judgment was refused. In other words, he has no locus standi,

Assuming I am wrong, I will now consider this issue on its merit.

The power to set aside a default Judgment is both inherent as well as statutory.

In Akinrinboya vs. Akinsola (supra)-“Default Judgment was defined as a Judgment rendered in consequence of the non-appearance of the Defendant. It is one entered upon the failure of a party to appear or plead at the appointed time. Put differently, default judgment means judgment entered under statutes or rules of Court, for want of affidavit or defence, plea, answer and the like, or for failure to take some required step in the cause.”And in Mohammed vs. Husseini (Supra) it was held among others that:-

“By virtue of ….. any judgment obtained where one 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 higher period as the Court may allow for good cause shown.”

It is trite that even though a Court of law may have jurisdiction to set aside its own Judgment, it can only do so where the conditions for doing so have been met by the party seeking such order to set aside. Sufficient materials must be placed before the Court for the exercise of such discretion.

In Sanusi vs. Ayoola (Supra) the Supreme Court set out the conditions to set aside judgment as follows:-

(a) The Applicant must show good reasons for being absent at the hearing.

(b) The application must have been brought within the prescribed period.

(e) The Applicant must show an arguable defence to the action, which is not manifestly unsupportable.

(d) The conduct of the Applicant throughout the trial must be such as is not condemnable but deserving sympathy.

(e) The Applicant must show that the Respondent will not suffer any prejudice or embarrassment if the Judgment is set aside.

(f) Whether the Judgment is tainted with fraud or irregularly obtained.

In the instant appeal under consideration the learned trial Judge held among others as follows:-

“Applicant has not satisfied any of the conditions, no sufficient material has been shown to the Court, no intention to defend, no defence attached. Conduct of Applicant is condemnable in deliberately ignoring Court processes.

I find this alarming; the Court has been treated with disdain and contempt, brazen arrogance.

A perusal of the record of proceedings and the Judgment of the trial Judge showed that the Appellant failed to exhibit any proposed Statement of Defence, failed to satisfy any of the conditions that can move the Court to set aside its Judgment and failed to proffer any reason for its absence.

It is therefore my view that the reasoning and conclusion of the learned trial Judge cannot be faulted and I hold that the learned trial Judge was right in refusing the application of the Appellant to set aside the Judgment of the Court entered on 14th March 2007.

This issue is also resolved in favour of the Respondent.

Issue-3

Whether the Learned trial Judge had jurisdiction to entertain the action.”

The learned Counsel for the 2nd Appellant stated that for a Court to be competent and have jurisdiction to determine a matter, the following essential elements must be complied with.

(a) It must be properly constituted as regards numbers and qualification of members of the Bench, and no member is disqualified for one reason or the other,

(b) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevent the Court from exercising its jurisdiction.

(e) The case comes before the Court initiated by a due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.

He referred to the following cases:-

Madukolu & Others VS. Nkemdilim (1962) 2 All NLR Page 581; Adewunmi VS. S.G.B. Ltd (1988) 6 NWLR Part 552 Page 154 at 169 Paragraphs A.D.

Learned Counsel for the 2nd Appellant submitted that for a Court to be competent to adjudicate in a matter, proper parties had to be before it. And where this is not done the Court cannot assume jurisdiction.

He referred to NEC v. Izuogu (1993) 2 NWLR Part 275 Page 270 at 295.

Learned Counsel submitted that the learned trial Judge ought to have set aside the Judgment of 14th March 2007 since it affected persons who were not joined. He went further that the parties that were not joined are entitled to a fair hearing in the determination of their civil rights and obligations. And also the fact that the question to be settled cannot be effectively and completely settled without the parties.

He referred to the following cases:-

Babalola vs. Aladejana (2001) 1 NWLR Part 728 Page 597 at 615; Mobil Oil Plc vs. DE NR Ltd (004) 1 NWLR Part 853 Page 142 at 157-158 Paragraph H.A.

The learned senior Counsel for the Respondent submitted that the learned trial Judge had jurisdiction to entertain the action.

He relied on Section 34 of Electoral Act 2006 and the case of:-

Ugwu v. Ararume (2007) 6 S.C. Page 88.

He went further In his submission that a political party that does not satisfy Section 34 cannot under our laws effect any change of its candidate.

Reference was also made to the letter written by 1st Appellant dated 25/2/08 for the discontinuance and withdrawal of this Appeal.

Learned senior Counsel submitted that this Appeal should be dismissed.

I agree with the submission of the learned Counsel for the 2nd Appellant that for a Court to be competent and have jurisdiction, the essential elements must be complied with and that is:-

(a) It must be properly constituted as regards numbers and qualifications of members of the Bench.

(b) The subject matter of the case is within its jurisdiction and there is no feature preventing the Court from exercising its jurisdiction.

(c) The case comes before the Court initiated by a due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.

See Madukolu & Others VS. Nkemdilim (Supra)

In the instant Appeal, this case being a pre-election matter, the jurisdiction being referred to is in respect of Section 34 of the Electoral Act 2006. The said section provides as follows:-

“(1) A political party intending to change any of its candidates for any election shall inform the commission of such change in writing not later than 60 days to the election;

(2) Any application made pursuant to sub-section 1 of this section shall give cogent and verifiable reasons;

(3) Except in the case of death there shall be no substitution or replacement of any candidate whatsoever after the date referred to in subsection 1 of this section.”

This Court in Ararume vs. INEC (2007) 9 NWLR Part 1038 Page 127 held among others that:-

The Issue of primaries, selection of candidates to contest an election at any given time is the preserve of political parties exclusively outside the province or competence of Courts, Court shall not impose a candidate on a political party. That position has now changed with the provision of Section 34 (1) and (2) of the Electoral Act 2006 which has created and placed extra duty on INEC in its supervisory role over the affairs of the political parties. Cogent and verifiable reasons are weapons to be employed by INEC when taking a decision to substitute a candidate.

The procedure engaged can be challenged in Court for interpretation of the Section.

Remi vs. INEC (2005) 6 NWLR Part 920 Page 56 referred to. (underlining supplied for emphasis)

Also in Ugwu v. Ararume (Supra) The Supreme Court per Oguntade JSC said at page 150 as follows:-

“…

My humble view on the decision in Onuoha v. Okafor (Supra) is that the same has ceased to be useful guiding light in view of the present state of our political life … If the political parties in their wisdom had written it into their constitutions that their candidates for election would emerge from their party primaries it becomes unacceptable that the Court should run away from the duty to enforce compliance with the provisions of the parties constitution. Indeed the Court, in its ordinary duties must enforce compliance with the agreements reached by parties in their contracts. Niki Tobi at pages 437 – 438 thus:-

“It is my view that the word “shall’ in Section 34 is clearly mandatory and peremptory and not directive or permissive. In other words by the subsection the 3rd Respondent must in its application to the 2nd Respondent give cogent and verifiable reasons for the change of candidate. Where the 3rd Respondent fails to give any reasons or gives reasons which are not cogent and verifiable, an aggrieved has the legal right to seek redress in a competent Court of law by virtue of Section 6 of the Constitution. This is what the 1st Respondent did and cannot fault him for doing so.”

In my humble view, it is therefore clear that no political party has the right to change its candidate less than 60 days to any election, And if it wishes to change any candidate, it shall cross some hurdles.

(a) It shall apply to INEC

(b) It shall give cogent and verifiable reasons.

A political party that does not satisfy section 34 cannot under our laws effect any change of its candidate. Furthermore, the application being referred to in Section 34 (2) of the Electoral Act 2006, is not automatic, it is subject to approval or disapproval from INEC. A contravention of Section 34 of the Electoral Act 2006 is therefore clearly justiciable. In other words, pre-election disputes arising from a breach or violation of Section 34 can be challenged by an aggrieved party before the Courts.

The 2nd Appellant relied on Exhibit “M1” on page 136 of the record of appeal for the position that he is a necessary party to be joined. A careful examination of the said Exhibit “M1” showed that no reason was adduced for the substitution being relied upon by the 2nd Appellant and in my view that explains why the 1st Appellant (INEC) conducted the election with the Respondent contesting as the sponsored candidate of the political party, returned him as the winner and issued him with a certificate of return. There was therefore no substitution of candidacy.

In view of the foregoing, it is my view that the learned trial Judge had jurisdiction to entertain the action. This issue is resolved in favour of the Respondent and against the 2nd Appellant.

In the final analysis, I hold that this Appeal is unmeritorious, it fails and it is accordingly dismissed.

In view of the circumstances surrounding this case coupled with the fact that the parties belong to the same political party, I will not make any order as to costs.

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Other Citations: (2008)LCN/2718(CA)