By Sylvester C. Udemezue
Because of the pride of place the judiciary occupies in society, the courts of law have come to be applauded as the temple of justice, the last hope of the common man, a bastion of hope for sustenance of true democracy, rule of law and due administration of justice, the impartial arbiter, et cetera. This is because of public belief and confidence in the disposition and ability of the courts to dispense justice with utmost impartiality, notwithstanding whose ox is gored and ensure that in all cases, justice is not only done, but is seen clearly to be done. Judicial and other officers involved in the administration of justice must therefore engage and be seen to engage only in conducts and pronouncements that inspire, promote and sustain, rather retard, public confidence and respect.
Bearing this in mind, I now ask with due respect, what manner of recklessness is this that’s reportedly displayed by the learned trial judge of the FHC Jigawa, in the Soludo/APGA case in re the upcoming Anambra Governorship elections? Is this not the type of scenario that could ground a disciplinary procedure against a sitting judge to serve as a deterrent to others. Please, don’t tell me that “as the court pleases” should apply here!
And I do not think the learned Judge’s privilege or immunity extends to absolve him from blame in the present instance.
ThisDay Newspaper of yesterday, July 17, 2021 had reported as follows: “Citing obedience to court rulings, the Independent National Electoral Commission, (INEC), yesterday dropped Prof. Chukwuma Soludo of the All Progressives Grand Alliance (APGA), and Valentine Ozigbo of the Peoples Democratic Party (PDP) from the unveiled list of candidates for the November 6 Governorship Election in Anambra State.In the originating summons, a chieftain of the party, Okoye Nwabuogo, is seeking an order of court setting aside the election and nomination of Soludo as the party’s candidate for the November election.The suit dated July 6, 2021, and filed the same day by counsel to the plaintiff, Okoro Nkemakolam, is further seeking an order restraining Soludo from parading himself as the validly or duly elected candidate of the party for the said election.Listed as defendants in the pre-election suit, are APGA, Prof Charles Soludo and INEC. While urging the court to invalidate and set aside the entire primary election of the party held on June 23, the plaintiff is equally seeking an order of injunction restraining INEC, listed as 3rd defendant, from accepting the name of or recognising Prof Soludo (the 2nd Defendant), as the candidate of APGA (the 1st defendant), for the Anambra State gubernatorial election scheduled to hold on November 6, 2021”. (https://www.google.com/amp/s/www.thisdaylive.com/index.php/2021/07/17/anambra-election-inec-excludes-soludo-ozigbo-apga-kicks/amp/)
The Federal High Court (Civil Procedure) Rules 2019 and the rule of law have made provisions to ensure there must be an end to litigation, there should not be multiplicity of suits. Hence, all necessary parties should be joined to all suits at all times to ensure that all issues arising for determination are resolved with finality in the interest of justice, res judicata and estoppel.
As of the time the plaintiff(s) in this suit, came before the Hon FHC Judge in Jigawa State over matter arising from the Anambra State APGA governorship primary elections, with due respect, the trial judge ought in the interest of justice, fair-play and rule of law, to have done the following: 1️⃣. The judge ought to have sent the parties to the proper forum. The proper forum, I submit, is the FHC in Anambra State because there are Federal High Court (FHC) Courtrooms in Awka, the State capital with presiding Judges who are not answerable to anyone within Anambra State.
2️⃣ If all obvious necessary parties were not joined to the suit, the judge in the interest of justice, should have, before making any order against any person, ensured/ordered that all obvious necessary parties must be joined and duly served with all court processes, for an effectual, effective, and just determination of the suit? Order 9 Rule 5 of the FHC (Civil Procedure) Rules, 2019: “Any person may be joined as defendant against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative. Judgment may be given against one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment”. Althogh by virtue of Order 9 Rule 14.(1) of the FHC Rules, “No proceeding shall be defeated by reason of misjoinder or non-joinder of parties, and a judge may deal with the matter controversy so far as regards the rights and interest of the parties actually before him”, yet, Order 9 Rule 14.(3) provides that a judge may at any stage of the proceedings “order that the name of any party be added, who ought to have been joined or whose presence before the Court is necessary to effectually and completely adjudicate upon and settle the questions involved in the proceedings”._ Upon adding such a party, the judge should order further that “every party whose name is added as a defendant shall be served with the originating processes
or notice in the manner prescribed in these Rules or in such manner as may be prescribed by a judge and the proceedings against such person shall be deemed to have begun on the service of such originating processes or notice”_. See Order 9 Rule 14 (5) FHC Civil Procedure Rules 2019).
What’s more? By Order 9 Rule 16, Where a defendant is added or substituted the originating processes shall be amended accordingly and the plaintiff shall unless otherwise ordered by a judge file an amended originating process and cause the new defendant to be served in the same manner as the original defendant.
The necessary parties in this suit include (I) the declared winner of the APGA primary election whose name had been submitted to the INEC as the party’s flag bearer for the November 2021 gubernatorial elections in Anambra State, (ii) the political party itself (APGA) and (iii) the electoral umpire (INEC). If the suit was asking the FHC to recognize a faction of APGA as the authentic faction, then the FHC judge ought to have ordered all court processes to be served on all other factions or factional chairmen (if any) of the same political party and on the INEC and also on the declared winner of the said primary elections.
However, if Soludo and his segment of APGA were already added as parties to the suit, then because of the nature of this case, the court should never have issued an order disqualifying Soludo or recognizing the other faction, without first (I) Ordering service of the processes on all the defendants and (ii) also hearing from them. This is because there was actually no emergency in this case. Look at it this way: even if Prof Soludo goes ahead to contest and eventually wins, he could still be sacked if it turns out (if the Court later finds) that he is not the rightfully candidate of APGA. See Peter Obi V. Independent National Electoral Commission & Ors (S.C. 123/2007 )  NGSC 180 (13 July 2007). See also AMAECHI v. INEC & ORS (2008) LPELR-446(SC); Amaechi v. INEC III (2007) 18 NWLR (Pt. 1065) 170. So, why the rush by the Federal High Court to issue an order disqualifying a party it had not heard from? How could a Court grant an order recognizing a particular person (a factional chairman of a political party) as the authentic chairman of that party without hearing from the factional chairmen of the same party? That’s pure judicial recklessness that shouldn’t be tolerated in a civilized system if we want our fledgling democracy to grow to maturity and stability.
With due respect, the trial judge was wrong to have entertained a suit seeking to disqualify a political party’s candidate or to have substituted with another person’s name, the name of the declared winner of a primary election whose name had already been submitted to the electoral umpire by the political party, without first hearing from the sought-to-be-disqualified candidate or sought-to-be-substituted aspirant before the court order . Such a court order is awkward, and against the rule of law and natural justice. The Jigawa FHC shouldn’t have removed Soludo behind his back and replacing his name with another’s! Does our law permit a man’s hair to be shaved behind his back? Why did the judge allow such an awkward procedure? Prof Soludo and his segment of APGA were necessary parties to the suit and no order should have been given without hearing from those two.
Anyway, this is the era of judicial rascality and recklessness in Nigeria! The other day, precisely on July 07, 2021, and without ordering the joinder of the National Youth Service Corps (NYSC) itself, which was a necessary party and without whose presence and participation the issues for determination in that suit couldn’t reasonably be said to have been determined with finality, another FHC Judge (Honestly Justice Taiwo Taiwo) had entertained and delivered judgment in a suit seeking to determine the fate of Mrs Kemi Adeosun over the latter’s NYSC evasion scandal. Further, earlier in the first quarter of 2019, the CCT Chairman for Nigeria had granted an ex parte order directing FG to suspend Nigeria’s CJN (Chief Justice of Nigeria) from office.
Note: ▪️a). The CCT ordinarily has no power to entertain such an application or to grant such an order let alone doing same ex parte. Hence, with due respect, the order was made ultra vires and therefore was illegal, and should have been treated as null and of no effect. Yet, that was the order the FG relied upon to suspend Hon Justice Onnoghen from office.▪️b). According to unrefuted reports, no lawyer had moved the said ex Parte Motion before the CCT Chairman. ▪️c). There was no report of any public hearing of the motion ex parte. Yet, all other restraining orders of the competent Federal High Court (FHC ) were ignored in preference for the illegal, surreptitious and suspicious order of the CCT Chairman.
Anyway, as it stands, the order of the FHC, Jigawa, suspicious and laughable as anyone may think it may be, must be obeyed by the INEC, the order being that of a competent court of law. This is in line with the directive of the Supreme Court: an order of a competent court remains binding and effective unless and until set aside or overruled by the same or a coordinate Court, or reversed by a higher Court or otherwise repealed by a later legislation. See Military Governor of Lagos State v Emeka Odumegwu-Ojukwu (1986-LCER-3600-SC); (1986) JELR 51747 (SC); (1986) 2 NWLR (PT 18) 621, It is for this reason that Sir Oliver Wendell Holmes Jnr had declared in his book, “The Path Of The Law” thus: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law“ (see http://www.constitution.org/lrev/owh/path_law.htm).
NOW, WHAT’S THE WAY OUT FOR PARTIES DENIED A FAIR HEARING OR ADVERSELY AFFECTED BY THE JIGAWA FHC ORDER?
For the reasons I have given above, the case is not yet res judicata. The Jigawa FHC judgment or order obviously adversely affects the interest of both Prof Soludo and the Victor Oye-led APGA. Both and each are therefore entitled to have that court order set aside in order for both and each to be afforded an opportunity of being heard as required by section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 which provides as follows: “36.(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”.
◼️Are Soludo and the Victor Oye-led APGA entitled to join the suit for purposes of protecting their own interests? If they’re not already joined, then the answer is a resounding YES. They’re necessary parties who ought to have been joined from Day One. Their non joinder is fatal to application of res judicata, estoppel and natural justice. Neither of them is estopped from reopening or joining the case. See Ladoja’s (HON. MUYIWA V HON. ADELEKE) (SC 272/2006) NGSC 30; (2007) 1 All N.L.R. 65.
◼️The next question is, would they (Soludo and APGA) succeed in having the disqualifying FHC order set aside? My respectful answer is, “most probably”, based on breach of Soludo’s and APGA’s right to a fair hearing and in line with section 36(1) afore-cited. When the court or any authority is required to observe the principle of natural justice in passing an order but fails to do so, the general judicial opinion is that the order is void. See also R. University of Cambridge ex parte Dr. Bentley (1723) 1 Str. 757. See also Ridge v. Baldwin (1964) A.C. 40 where the court held the decision of the authority void on the ground of the breach of the rule of fair hearing. The principle of natural justice must be observed irrespective of the reason, whether the purpose would be served or not. See Maneka Gandhi v. Union of India AIR 1978 SC 597. For this purpose, please see also the following Nigerian cases: Baba v Civil Aviation (1991) 7 SCNJ, Pt. 1, 1; Ogundoyin v Adeyemi (2001) 13 NWLR, Pt. 730, 403; Kotoye v CBN (1989) 1 NWLR (Pt. 98), 419 at 444; Bamgboye v University of Ilorin (1999) 6 SCNJ 295 at 331; Salu v Egeibon (1994) 6 SCNJ 223 at 234; and Kim v State (1992) 4 SCNJ 81.The simplest connotation of the requirement of Fair hearing is that every affected/interested party must be given an unhindered opportunity to present his case before a court, tribunal, or body that will dispassionately determine his right, failing which any order made against him is liable to be set aside. See Newswatch Communication Ltd v Atta (2006) 2 NWLR, Pt. 993, 144 at 181 – 182; Ekpeto v Wanogho (2004) 18 NWLR, Pt. 905, 394. If we take care of rule of law, rule of law will take care of us. No court of law has the right to do whatever it likes unless what it likes is liked by the law!
Sylvester C. Udemezue (udems). 08109024556.
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