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.”