LEGAL IDEAS FORUM

ARARUME V. UBAH: ON WHETHER COURT CAN MAKE ORDER AGAINST A NON PARTY TO A SUIT. An insight into the decision of the Supreme Court therein.

Citation: (2021)8 N.W.L.R PT. 1779 AT 515.
PARTIES IN FULL:
SENATOR GODWIN IFEANYI ARARUME.
V.

  1. LADY UCHENNA ONYEIWU UBAH
  2. ALL PROGRESSIVES CONGRESS (APC)
  3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
  4. DR. EDITH CHIDINMA UWAJUMOGU
  5. HONOURABLE MATHEW OMEGARA

Courtesy: Moruff O. Balogun Esq.
Summary of facts:
Following the death of the senator representing Imo North Senatorial District in 2019, the 2nd respondent decided to conduct primary elections to fill the vacancy created by the event of the death of its senator. On the 3rd day of September, 2020, primary
elections were duly conducted.

The 1st respondent and others (including the appellant) contested the 2nd respondent’s primary election to nominate the 2nd respondent’s candidate for the impending general election of the Senator representing lmo North in the Senate. She and other aspirants lost the said primary election. Frank Chukwuma Ibezim scored the majority of lawful votes cast at the primary election and was declared winner of the election.

The 1st respondent claimed that the 2nd respondent deliberately refused to transmit the name of the winner to the 3rd respondent, Independent National Electoral Commission. The 1st respondent therefore commenced the instant action by way of originating summons at the trial court wherein she sought an order of court that Chukwuma Frank Ibezim be accepted by the 2nd respondent (APC) as its candidate for the Imo North Secretarial District Bye-election to the exclusion of any other candidate of the party.

The 1st respondent also sought an order compelling the 2nd respondent to forward the name of the winner Frank Ibezim to the 3rd respondent. The appellant thereafter applied to the trial court and was granted leave to join the suit as the 3rd defendant. He subsequently filed necessary processes including a written address and counter affidavit in opposition to the originating summons. The kernel of the appellant’s challenge to the said suit was that the 1st respondent had no locus standi to institute the action given that she did not obtain the authority nor had any privy with Chukwuma Frank
Ibezim to do so. Chukwuma Frank Ibezim was never joined as a party to the suit.

The trial court, in its judgment, dismissed the 1st respondent’s claim. The trial court also made an order that the name of the appellant Senator Ifeanyi Ararume be submitted to the 3rd respondent as the 2nd respondent’s candidate for Imo North Senatorial District
bye-elections and nullified the nomination of Chukwuma Frank Ibezim as the candidate.

The 1st respondent was unhappy with the decision of the trial court and he appealed to the Court of Appeal.
The Court of Appeal found that the action at the trial court was grossly incompetent having been instituted by a busy body and that the trial court had no jurisdiction to hear and determine the claim because the plaintiff at the trial court had no locus standi. The action was accordingly struck out.

The appellant’s cross appeal at the Court of Appeal was struck out on the ground that the trial court had no jurisdiction. The appellant was unhappy with the decision of the Court of Appeal and he appealed to the Supreme Court.

Held: Unanimously dismissing the appeal and striking out the cross-appeal.
The following issues were raised and determined by the Supreme Court:

On whether court can make order against a non party to a suit-
A court of law will not make an order affecting the interest of a party that is not before it; so doing will amount to an unpardonable infraction on the fundamental right of the party to fair hearing. It is unconscionable to shave a man’s head from his back. In the instant case, Chukwuma Frank Ibezim was truly made a victim of damning order of the
trial court excising his name from the list without granting him a hearing. This obviously rendered the decision of the trial court a nullity as rightly found by the Court of Appeal. The learned trial Judge specifically mentioned the name of Chukwuma Frank Ibezim in the judgment of the trial court; yet, the court never saw it fit to join him as a necessary
party. The decision of the Court of Appeal setting the judgment of the trial court aside was perfectly in order.

On effect of order made against non party to a suit-
A court has no power to make an order that affects the interest of any person, who is not a party to the case before it, and where such an order is made it will not be binding on that person. The effect thereof is that such an order is a nullity and of no effect. In the instant case, the trial court was affects completely out of order when it mentioned the first respondent, Chukwuma Frank Ibezim, who was not a party to the suit, and proceeded to make consequential orders against him. The Court of Appeal was therefore right to set aside the decision of the trial court because the orders it made that adversely affected the interests of Chukwuma Frank lbezim, breached his right to fair hearing, and that rendered the whole proceedings at trial court a nullity.

On duty of court to ensure necessary parties to an action are joined-
It is the duty of every court to ensure that parties that are likely to be affected by the result of an action are joined. A necessary party must not have the doors of the court house shut against him, where this happens the decision of the court will be declared a nullity.

On what rule of natural justice demands and nature of principle of fair hearing –
Natural justice demands that a party be heard before the case against him is determined. Once there is an infringement of the principle of natural justice against him, then the trial is not fair. The principle of fair hearing is not a mere adjudication but a doctrine that enjoins that once a party entitled to be heard before deciding a matter is denied opportunity of being heard, the order or decision given thereon will be vacated or set aside, this is because the issue of fair trial hearing is constitutional and fundamental. In the instant case, the trial court made a sweeping order against Chukwuma Frank Ibezim who was not by any means a party to the suit and no effort was made to join him as a necessary party. Therefore, a party entitled to be heard in an action before reaching a rational decision on it was not given any opportunity of a fair hearing and this vitiated whatever decision reached or order made against him. The decision of the Court of Appeal setting aside the decision of the trial court because
the orders it made adversely affected the interests of the first respondent without giving him right to fair hearing was unimpeachable.

On what locus standi denotes and relationship of with jurisdiction of court-
Locus standi denotes the legal capacity to institute proceedings in a court. It is a threshold issue that strikes at the roots and tap roots of the action. Once it is raised, it must first be determined before delving into other issues bordering on the merits of the case. On no account should the merits of the case be considered before locus standi is decided. Locus standi affects the jurisdiction of the court. In the instant case, the trial court was right when it decided to deal at once with the issue of locus standi.

On need for party to be consistent in presenting his case-
Litigation is not a game of chance. A party in litigation must be consistent in proving his case; he will not be allowed to be shifty in proving his case. In the instant case, the appellant at one time consistently insisted that the plaintiff at the trial court had no
locus standi, and suddenly surfaced with another narration that Chukwuma Frank Ibezim was privy to the suit at the trial court. This conduct alone had portrayed the case of the appellant as undeserving of sympathetic consideration.

On duty on party to be consistent in his case at the trial court and on appeal-
The case a party presents in a proceeding must be consistent and remain the same at all stages of the proceeding. The law will not allow a party to change his or her case at different stages of the same proceeding. His or her case on appeal must be in support of the case he or she presented at the trial proceedings. A party’s case or position on
appeal that is inconsistent with or contrary to his case at the trial court is invalid. In the instant case,the case of the appellant in the Court of Appeal and in the Supreme Court that the Francis Chukwuma Ibezim was a privy of the 1st respondent, being contrary to his case at the trial court that he was not such privy, was obviously invalid.

DISSENTING VIEW OF AGIM, J.S.C. :

On right of political party and its candidate to sue or be sued on account of the candidature-
A suit against a party on account of his being candidate of a political party is a suit against him. He is an unnamed party in that suit. Either the party or himself can sue or be sued on account of the candidature. The suit leading to the instant appeal was filed by the 1st respondent. She and others (including the appellant) contested the 2nd respondent’s primary election of 3/9/2020 to nominate the 2nd respondent’s candidate for the impending general election of Senator representing Imo North in the Senate. She and other aspirants lost the said primary election. Francis Chukwuma Ibezim scored the majority of lawful votes cast at the primary election and was declared winner of the election. The 2nd respondent submitted his name to the 3rd respondent as its candidate for the said election. Curiously, the 1st respondent filed this suit to protect and preserve the said nomination of Francis Chukwuma Ibezim as its candidate said election. There was no evidence that Francis Chukwuma Ibezim authorized the 1st respondent to sue on his behalf to protect and preserve his victory. The mere fact that the suit was for his benefit did not make him a privy of the 1st respondent. The fact that All Progressives Congress, the Political Party that nominated Francis Chukwuma Ibezim and submitted his name to the 3rd respondent as its candidate in the impending election, was named
in the suit as a defendant to the suit, rendered unnecessary the argument about its said candidate not being named as a party or defendant in the suit and that the decision of the trial court should therefore not bind him. His candidature was not personal to him. It belonged to his party and himself. As a candidate of the party, he was a representative of the party.

Courtesy:
Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.
08052871414
09121207712 [WHATSAPP]

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