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UHUEGBU v. OBIEKE & ANOR (2021)

UHUEGBU v. OBIEKE & ANOR

(2021)LCN/15758(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Friday, November 05, 2021

CA/OW/200/2020

Before Our Lordships:

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Ibrahim Wakili Jauro Justice of the Court of Appeal

Between

ANDERSON ONYENONACHI UHUEGBU APPELANT(S)

And

1. CHIEF UWADI OBIEKE 2. NWABUEZE BENSON UHUEGBU RESPONDENT(S)

RATIO

WHETHER O NOT THE COURT CAN GIVE JUDGEMENT AGAINST A PERSON WHO WILL BE AFFCTED BY ITS DECISION
It is well settled law and practice that the Court cannot give judgment against a person who will be affected by its decision if such person is not a party to the suit. Such proceedings will be a nullity, being a denial of their right to fair hearing. See Transnav P. N. Ltd v Velcan E.H.D. Ltd (2020) 7 NWLR Part 1723 Page 293 at 311 Para F-G per Abba Aji JSC, Oyeyemi v Owoeye (2017) 12 NWLR Part 1580 Page 364 at 401-402 Para H-A per Bage JSC, Babatola v. Aladejana (2001) 12 NWLR Part 728 Page 597 at 615, Para C-D, per Mohammed JSC. PER ADEFOPE-OKOJIE, J.C.A.

THE CONSEQUENCE OF WHERE A COURT MAKES AN ORDER OR GIVE JUDGEMENT AGAINST A NON-PARTY TO A CASE

The lower Court was also in error to have held that the Appellant “… should come properly to join in the case as a party before he could have found the appropriate platform to attack or challenge the orders”. This is because where a Court makes an order or gives judgment against a non-party to a case, it is the person affected who has the vires to apply to the Court to set the judgment or order aside. See Ibrahim v Umar (2012) 7 NWLR Part 1300 Page 507 at 530 Para G-H per Orji-Abadua JCA.
In emphasis, Oseji JCA (as he then was) (of blessed memory), reading the lead judgment in Honeywells Flour Mills Plc v Ecobank (Nig) Ltd (2016) 16 NWLR Part 1539 Page 384 at 424 Para E-G, put the words thus:
“It is the law that a Court is not to make an order that will affect the interest of a nonparty to a suit given that it may infringe on their right to fair hearing. SeeObiozor v. Nnamua (2014) LPELR (23041)CA. I must add however that it depends on the nature of the order so made and whether such order is adverse to the interest of such party not joined. But more importantly, it seems to me that even in a situation where an order is made by a Court and it affects the interest of a non-party to a suit, the proper person to complain is the said party whose interest has been adversely affected. It is therefore not open to everyone to complain against such order.

The complaint, by way of application to the Court that made the order must come from the affected party not joined in the suit.” Underline Mine. PER ADEFOPE-OKOJIE, J.C.A.

THE TEST FOR THE DETERMINATION OF WHO MAY BE A NECESSARY PARTY TO A SUIT

It is now settled that the blue litmus test for the determination of who may be necessary party to a suit is predicated upon whether the judgment will affect the party and one of the reasons which makes it necessary to make a particular person a party to an action is that he will be bound by the result of the action. The other reason is to forestall parallel litigations and to put an end to litigation. See AMON VS. RAPHAEL TRUCK & SONS LTD (1956) 1 QBD AND BUHARI VS. YUSUF (2003) 14 NWLR (PT. 841) 446.
Commenting on the necessity to join such a party to an action, the Court in the case of OKEKE VS. CHIDOKE (2011) 5 NWLR (PT. 1241) 483 stated thus:
“The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party. “
See also ADENIRAN VS. OLUSOKAN II (2019) 8 NWLR PART 1673 PAGE 98 AT 121 PARA F PER RHODES- VIVOUR JSC cited in the lead judgment.
PER WAMBAI, J.C.A.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Imo State High Court, Holden at Owerri, coram E.F. Njemanze J, delivered on the 12th day of May, 2020 (hereinafter referred to as the lower Court), wherein the lower Court dismissed the motion of the Appellant seeking to set aside its orders granted on 03/06/2019 and 31/10/2019. Dissatisfied with the ruling of the lower Court, the Appellant filed a Notice of Appeal on 03/06/2020.

Brief facts
By the claim of the 1st Respondent, who was the Plaintiff at the lower Court, the members of Umuihugba Umuodu Welfare and Development Council in Owerri Municipal Council of Imo State (hereafter referred to as “the Community”) leased the land in dispute to the 1st Respondent on the 31st day of August, 2010. An issue however arose between them with respect to the lease, in consequence of which the 1st Respondent filed an action in Court, in HOW/746/2017, which resulted in a consent judgment between the parties, delivered on 18th day of October, 2018, to the effect that though the land belongs to the said Community, the 1st Respondent is entitled to possession and use of the land for 45 years which is the term of the lease. Also, that after the 45 years, the members of the council were not to sell the land without first giving the 1st Respondent the option of purchase.

Sometime in 2019, the 1st Respondent got information that the Council was making plans to sell part of the property to one Nwabueze Benson Uhuegbu (the 2nd Respondent), pursuant to which the 1st Respondent instituted a legal action in Suit No: How/16/2019 against the Community and the 2nd Respondent seeking strict adherence to the consent judgment of 18/10/2018. While that suit was still pending before the Court, the 1st Respondent, on the allegation that the 2nd Respondent was entering the premises and destroying some parts of the property and renovating them, instituted the instant action in the Court below, for trespass and damages for the destruction of the property, as well as for an interlocutory injunction protecting the res from further destruction. This injunction was granted by the lower Court on 03/06/2019, restraining the 2nd Respondent either by himself or through his agents, staff or whomsoever from further entry or destruction of any building on the land called 1 Mere Street, Owerri, pending the determination of the substantive suit.

The Appellant, on becoming aware of the Court processes in respect of the action and the injunction involving the property, instructed his lawyer to defend his interest in the property, which lawyer filed a motion on the 16th day of July, 2019, for the joinder of the Appellant as a Co-Defendant. A similar motion for joinder filed on behalf of the Community was withdrawn by them and struck out. While the motion of the Appellant for joinder was pending, the lower Court, on 31/10/19, proceeded to make another order directing the Chief Registrar of the Court to take over management of the property and receive rents from tenants therein named, to be paid to the Chief Registrar, which rent would be paid into an interest yielding account to be released to either the Plaintiff (1st Respondent) or the 2nd Defendant (2nd Respondent), on their success at the conclusion of the case.

Subsequently, the Appellant withdrew his application for joinder and filed a motion to set aside the orders of the lower Court made on the 3rd day of June, 2019, and 31st October, 2019. On the 12th day of May, 2020, the lower Court delivered a ruling dismissing both motions on the ground that the order of the 3rd June, 2019, was not directed at the Appellant specifically and that the order of 31st October, 2019, was made with the consent of the Appellant who was represented on that day by his former counsel A.I Nwachukwu, Esq. He should therefore join the suit in order to defend his acclaimed interest. Aggrieved by this ruling, as aforesaid, the Appellant filed the present appeal.

ISSUES FOR DETERMINATION
In the Appellant’s Brief of Arguments settled by Adebayo Badmus Esq., and filed on the 21st day of August, 2020, five (5) issues were formulated for the Court’s determination, namely:
1. “Whether the lower Court was right to have held that there are three claimants to the subject property.
2. Whether having found that the Appellant is an interested party in the matter, the lower Court was right when it held that the Appellant should come properly to join in the case as a party before he could have found the appropriate platform to attack or challenge the orders.
3. Whether the lower Court was right when it held that the position of the law in Adenuga v. Odumeru that a Court of law has no power to make an order against the interest of person who are not parties is not relevant to the present case as no specific order was made against the interest of the Appellant in the orders of 3rd June, 2019 and 31st October, 2019 because the interest of the Appellant was not made known as at 3rd June, 2019.
4. Whether the lower Court was right to have held that the Appellant cannot engage in the process of setting aside the order of 31st October, 2019 on the ground that the Appellant and his counsel participated in the proceedings of 31st October, 2019 and consequently, slept on his right.
5. Whether the lower Court was right to have refused to set aside its interlocutory order of 3rd June, 2019 and order of 31st October, 2019 empowering the Chief Registrar of the High Court of Imo State to take over the management and control of the subject property on grounds of nullity, lack of jurisdiction and misrepresentation and concealment of fact.

In the 1st Respondent’s Brief of Arguments filed on the 17th day of September, 2020 and settled by C.K Okorie Esq., the issues for determination formulated by the Appellant were adopted.

The 2nd Respondent’s Counsel, Azubuike Nwankenta Esq., in the 2nd Respondent’s Brief of Arguments filed on the 22nd day of February, 2021 but deemed properly filed on the 2nd day of March, 2021, similarly adopted the issues for determination formulated by the Appellant.

The Appellant’s Reply Brief to the 1st Respondent’s Brief of Arguments was filed on the 2nd day of October, 2020.

The salient issues that arise for determination in this appeal can be subsumed under the 2nd and 5th issues for determination distilled by the Appellant, which are the following:
“1. Whether having found that the Appellant is an interested party in the matter, the lower Court was right when it held that the Appellant should come properly to join in the case as a party before he could have found the appropriate platform to attack or challenge the orders.
2. Whether the lower Court was right to have refused to set aside its interlocutory order of 3rd June, 2019 and order of 31st October, 2019 empowering the Chief Registrar of the High Court of Imo State to take over the management and control of the subject property on grounds of nullity, lack of jurisdiction and misrepresentation and concealment of fact.”

Both issues shall be taken together.

APPELLANT’S SUBMISSIONS:
The Appellant’s Counsel has submitted that having found that the Appellant is an interested party in the matter, the lower Court was wrong when it held that the Appellant should come properly to join in the case as a party before he can have the appropriate platform to attack or challenge the orders. Counsel stated, as the position of the law, that where a non-party is affected by an order of Court which can properly be described as a nullity or that it was obtained by fraud, or if the Court was misled into granting the same by concealing some vital information or fact, the non-party affected by the said order is entitled to ex debito justitiae apply to have the order set aside without joining in the suit as a party or filing an appeal. He cited the cases of Ibrahim v. Umar [2012] 7 NWLR Part 1300 507 at 530, Para G-H per Orji-Abadua, JCA, Honeywell Flour Mills Plc. v. Ecobank (Nig) Ltd [2016] 16 NWLR Part 1539 384 at 424 Para E-G, Oseji, JCA (as he then was) and the unreported decision of Kolawole JCA in of RMCK Projects Development Limited & Anor v. FRN & 6 Ors in CA/L/454/2017 delivered on 15/11/19. The lower Court, he urged, ought to have set aside the orders of 3rd June, 2019 and 31st of October, 2019 strictly as an intervener only and not as a party. He gave the grounds for a Court setting aside its own order.

1ST RESPONDENT’S SUBMISSIONS
Learned Counsel submitted that the law is that for a non-party to a suit to have the proper standing in law to seek to set aside the order of the Court, he must first of all apply to the said Court to be joined in the suit in order to have the requisite platform to apply to set aside the order of Court, citing the case of Bello v I.N.E.C (2010) 8 NWLR Part 1196 Pg. 342 at 361. He observed that the Appellant, through his former lawyer, A. I Nwachukwu Esq., filed a motion for him to be joined in the suit to enable him canvas his interest, which the lower Court was inclined to grant and for which reason the lower Court made the order of the 31st day of October, 2019 only for the Appellant to approach the lower Court on the 3rd day of November, 2019 to withdraw his motion for joinder and, without being a party to the suit, file a motion on 5/2/20 for the lower Court to set aside its orders of the 3rd June, 2019 and 31st October, 2019 on the ground that they affect his interest. The lower Court, he said, was right to refuse the applications. He submitted that the authorities cited by the Appellant were inapplicable.

Appellant’s Reply Brief
In his reply brief filed in response to 1st Respondent’s Brief of Arguments, Appellant’s Counsel stated that the submission of the 1st Respondent that the Appellant withdrew his application for joinder because the Appellant did not have genuine interest in the suit is correct, he submitted, as the Appellant was only concerned with the orders made against his property which in turn affects the Appellant’s interest being the owner of the subject property. The 1st Respondent, he said, deliberately sued the 2nd Respondent and not the Appellant for trespass and damages for trespass. He thus wondered why he should force himself to be joined as a party when the Appellant is not interested in the 1st Respondent’s case of trespass and damages for trespass against the 2nd Respondent.

2nd Respondent’s Submissions
The 2nd Respondent’s Counsel submitted that the lower Court, having found that the Appellant is an interested party “as he claimed that he purchased the property from Umuihugba Umuodu Owerri people” ought to have discharged the orders made instead of directing the Appellant to come properly to join the case as a party before he can find a platform to challenge the orders. He also relied on the case of Honey Well Flour Mills Plc. V. Ecobank (Nig) ltd (2016) 16 NWLR Part 1539 384 at 424, Para E-G. He submitted further that the reason given by the lower Court for holding that the cases of Adenuga v. Odumeru [2002] 8 NWLR Part 821 163 and others were not relevant to the instant case, as no specific order was made against the interest of the Appellant in the order of 3rd June, 2019 and 31st October, 2019 and also because the Appellant’s interest was not made known as at 3rd June, 2019 and 31st October, 2019, is a perverse decision which ought to be set aside. He cited Oguntade V Oyelakin (2020) EJSC Vol 132 Page 117. He concluded by adopting all the submissions of the Appellant made in the Appellant’s Brief of Arguments and his Reply Brief.

RESOLUTION
The claim of the 1st Respondent, by his Statement of Claim filed on 25/3/2019, is for the following reliefs:
a) A declaration of the Honourable Court, it is wrong and unlawful for the Defendant to destroy the buildings on the land called No. 1 situates No. 1 Mere Street, Owerri in Owerri Municipal Council of Imo State while the suit No. HOW/16/2019: Chief Uwadi Obieke v. Surveyor Fedinard Anuruo is still pending.
b) N50,000,000.00 (Fifty Million Naira) only being general damages for trespass and destruction of the buildings on the land called No. 1 situate at No 1 Mere Street, Owerri in Owerri Municipal Council of Imo State.
c) A perpetual injunction restraining the Defendant either by himself or through his agent, staff, workers or whosoever from entering or destroying any building on that land called No. 1 situates at No 1 Mere Street, Owerri in Owerri Municipal Council of Imo State.

The orders made by the lower Court on 3/6/2019 and 31/10/2019 are the following:

Order of 3/6/2019 (Page 33 of Records)
“It is hereby ordered that the Defendant either by himself, through his agent, staff, workers or whosoever are restrained from further entry or destroying any building on that land called No. 1 Mere Street Owerri in Owerri Municipal Local Government Area of Imo State pending the determination of the substantive suit. The substantive suit is adjourned to 17/7/2019.
Order of 31/10/2019 (Page 56 of Record)
a. “The Chief Registrar of the High Court, Imo State or any Officer delegated by her shall take over the management and control of the two storey building at No. 1 Mere/Onumiri Street, Owerri subject of this suit.
b. The rent of the following tenants Messrs. Izuchukwu Osuji, Ndubuisi Obiakor, Simon Ogbonna and Vincent Ogbonna shall now be paid to the Chief Registrar commencing from the expiration of the already paid rent by the tenants.
c. The rent shall be paid into an interest yielding account and shall be released to either the Plaintiff or Defendants at the conclusion of this suit to the person who wins the case.
d. The Plaintiff is in occupation of the first and last floors as his office and should not be rented under any guise whatsoever. The appointment of the Chief Registrar covers the management and control of the entire floors of the building.
e. The parties are hereby directed not to disturb or go contrary to any instruction of the Chief Registrar in respect and over the property.”

It is not in doubt, and as acknowledged by the lower Court, that the Appellant is an interested party in the suit before the trial Court, having disclosed his purchase of the property in dispute and thus affected by the orders of 3/6/2019 and 31/10/2019. The question, however, is whether he could apply to set aside the order by the Court without being a party to the proceedings or whether he needed to join in the proceedings before he could bring an application to set aside the orders. In the event that the former situation is found to be the case, what order should then be made?

It is well settled law and practice that the Court cannot give judgment against a person who will be affected by its decision if such person is not a party to the suit. Such proceedings will be a nullity, being a denial of their right to fair hearing. See Transnav P. N. Ltd v Velcan E.H.D. Ltd (2020) 7 NWLR Part 1723 Page 293 at 311 Para F-G per Abba Aji JSC, Oyeyemi v Owoeye (2017) 12 NWLR Part 1580 Page 364 at 401-402 Para H-A per Bage JSC, Babatola v. Aladejana (2001) 12 NWLR Part 728 Page 597 at 615, Para C-D, per Mohammed JSC.

The Appellant, it is clear, was and still is not a party to the suit at the lower Court. It is thus not in dispute that the orders were made in his absence. It is also not in dispute, that, as disclosed in his application to set aside the orders of the lower Court, he was laying claim to the property in dispute. It is accordingly clear, that, by his application, he was a person interested in the suit before the lower Court and affected by the orders made.

In spite of the settled position of the law as espoused in the cases above, the lower Court, in its ruling of 12/5/2020 hearing the application of the Appellant, refused to set aside the orders made by it, giving the following as its reason:
“He was not a party to the suit strictu sensu, however, as he claimed that he purchased the property from Umuihugba Umuodu Owerri People making him an interested party or party having interest in the matter, he should come properly to join in the case as a party before he could have found the appropriate platform to attack or challenge the orders.”

Prior to making this order, the lower Court, in the same ruling of 12/5/2020, observed that before the grant of the order of injunction complained of, the Defendant (2nd Respondent herein) had been served with the 1st Respondent’s application but made no appearance. The Court also referred to its proceedings of 31st of October, 2019 at which the 1st Respondent was represented by Counsel and the Appellant seeking to be joined, represented by A.I. Nwachukwu Esq., which adjournment, the Court stated, was for the purpose of supplying the names of the tenants on the premises. The Court reproduced its decision made on the said date, where it observed:
“Report from the Plaintiff showed that the party seeking to join contrary to the injunctive order carried on construction on the building and has put tenants therein. The act itself is contemptuous and capable of making this Court invoking (sic) its disciplinary powers to punish the person or persons involved. I have decided in the interim to hand over management of the building and appurtenant there to the Chief Registrar High Court Imo State. The Counsel on both sides are agreeable to this stand of the Court. In the circumstance, I make the following orders….” Underlining Mine

It thereupon made the 2nd order giving the Chief Registrar leave to take over the management of the said property.

Following its reproduction of these proceedings, it agreed that the Applicant (Appellant herein) was not a party as at the date the order of interlocutory injunction was made on 3/6/2019. It however noted that A.I. Nwachukwu represented the Applicant and agreed to the orders made and also that there was no specific claim against the Applicant in the suit. It disclaimed the Applicant’s contention that A.I Nwachukwu was not instructed by him to concede to the order made of 31/10/2019, holding that “a party cannot resile from an earlier consent on irregular procedure. Where a party participated fully and consented to the procedure adopted at the trial or proceedings which did not show any miscarriage of justice, what it translates to is that the said party cannot resile from that earlier consent.”

Looking through the proceedings of 31/10/2019 (Page 54 of Record), I note that apart from the ipse dixit of the learned Judge in his brief ruling quoted above, the proceedings do not show what “stand of the Court” Mr. Nwachukwu was agreeable to. All that is stated in the proceedings of the day is the appearance of Counsel and the ruling of the Court stated above.

Even more important is the question whether the order for interlocutory injunction granted on 3/6/2019 in the absence of the Appellant and without hearing his application for joinder which was pending, can stand and so also the further order making the Chief Registrar the Receiver, until conclusion of the case?

I respectfully do not agree. This is for the singular reason, as stated in the authorities above, that any order made against a non-party cannot stand.

The lower Court was also in error to have held that the Appellant “… should come properly to join in the case as a party before he could have found the appropriate platform to attack or challenge the orders”. This is because where a Court makes an order or gives judgment against a non-party to a case, it is the person affected who has the vires to apply to the Court to set the judgment or order aside. See Ibrahim v Umar (2012) 7 NWLR Part 1300 Page 507 at 530 Para G-H per Orji-Abadua JCA.
In emphasis, Oseji JCA (as he then was) (of blessed memory), reading the lead judgment in Honeywells Flour Mills Plc v Ecobank (Nig) Ltd (2016) 16 NWLR Part 1539 Page 384 at 424 Para E-G, put the words thus:
“It is the law that a Court is not to make an order that will affect the interest of a nonparty to a suit given that it may infringe on their right to fair hearing. SeeObiozor v. Nnamua (2014) LPELR (23041)CA. I must add however that it depends on the nature of the order so made and whether such order is adverse to the interest of such party not joined. But more importantly, it seems to me that even in a situation where an order is made by a Court and it affects the interest of a non-party to a suit, the proper person to complain is the said party whose interest has been adversely affected. It is therefore not open to everyone to complain against such order.

The complaint, by way of application to the Court that made the order must come from the affected party not joined in the suit.” Underline Mine
The 1st Respondent’s Counsel has however cited the case of Bello v INEC (2010) 8 NWLR Part 1196 Page 342 at 413 Para H, where the Supreme Court, per Onnoghen JSC (as he then was) in his concurring judgment held as follows:
“Where, however, a person interested in the outcome of any proceeding intends to initiate action or processes to protect or guarantee his interest, he has first and foremost to apply to the Court to be joined in the proceedings.”
This is indeed the principle for joinder. The only reason which makes a person a necessary party and therefore a party against whom an order of joinder ought to be made, is that he should be bound by the result, which question cannot be effectually settled without him. See Adeniran v Olusokan II (2019) 8 NWLR Part 1673 Page 98 at 121 Para F per Rhodes-Vivour JSC, Ajayi v. Jolayemi (2001) 10 NWLR Part 722 Page 516 SC at 531 Para F-G, Page 537 Para G-H per Ogundare JSC. ​This is however different from the question whether a person who is not a party to proceedings, can apply to set aside orders made in his absence.
Indeed, His Lordship Onnoghen JSC in the case of Bello v INEC Supra, prior to making the statement above, held on the same page, at 413 Para E-H, as follows:

“However, though the 2nd respondent was not a party to the proceedings, it could still have, in appropriate circumstances, been admitted or allowed to apply to set aside the said judgment if, for instance, it is established that the 2nd respondent is a person interested in the outcome of the proceedings particularly where his interest may be affected by the suit either directly or indirectly.” Underline Mine
That case is therefore no authority for the proposition, as submitted by the 1st Respondent’s Counsel, that a non-party to proceedings cannot apply to set aside an order made in his absence.

In Adenuga v Odumeru (2003) 8 NWLR Part 821 Page 163 at 187 Para B-E, the Supreme Court, per Uwaifo JSC held:
“…. the effect of the orders he made decided the substantive reliefs in an irreversible way when such was most inappropriate, undesirable and indefensible in the circumstances of this case. He even made orders against a non-party – the Nigerian College of Accountancy, Jos, – by freezing its accounts and forbidding it from collecting funds, orders which were clearly not in law binding on them. See Green v. Green (1987) 3 NWLR (Pt. 61) 480, (1987) 2 NSCC (Vol. 18) 1115. These same orders were, in addition, not related to the reliefs claimed in the substantive suit and in principle cannot be made as permanent orders at the trial. It follows that the grant of those orders in the interim cannot be justified. What the learned trial Judge did was simply and clearly an indiscreet use of judicial powers.” Underlining Mine

The consequence of the foregoing is that the orders made by the lower Court on 3/6/2019 and 31/10/2019 against the Appellant, are nullities. The lower Court was accordingly wrong to have held that the Appellant should come properly to join in the case as a party before he could have the proper platform to challenge the orders of the Court. The Court was therefore in error, I hold, to have refused to set aside its said orders.

I accordingly resolve the 1st and 2nd issues for determination in favour of the Appellant. The appeal is, in consequence, allowed. The order of interlocutory injunction made on the 3rd day of June, 2019 and the order made on 31st of October, 2019 are accordingly set aside.
The parties are to bear their respective costs.

AMINA AUDI WAMBAI, J.C.A.: I read in draft the lead judgment of my learned brother OLUDOTUN A. ADEFOPE-OKOJIE, JCA, and I am in total agreement with the reasoning and conclusion.

The law, and I dare say, a sound one, that a Court of law should not make an order that will affect the interest of non- party to the suit is one in tune with the dictates of the Rules of Natural Justice. This rule requires that a person interested in the outcome of any proceedings, order or judgment should be made a party to the proceedings in other that the order or judgment can be enforced against him. A breach of this rule infringes on the right of the non-party affected by the order.

It is now settled that the blue litmus test for the determination of who may be necessary party to a suit is predicated upon whether the judgment will affect the party and one of the reasons which makes it necessary to make a particular person a party to an action is that he will be bound by the result of the action. The other reason is to forestall parallel litigations and to put an end to litigation. See AMON VS. RAPHAEL TRUCK & SONS LTD (1956) 1 QBD AND BUHARI VS. YUSUF (2003) 14 NWLR (PT. 841) 446.
Commenting on the necessity to join such a party to an action, the Court in the case of OKEKE VS. CHIDOKE (2011) 5 NWLR (PT. 1241) 483 stated thus:
“The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party. “
See also ADENIRAN VS. OLUSOKAN II (2019) 8 NWLR PART 1673 PAGE 98 AT 121 PARA F PER RHODES- VIVOUR JSC cited in the lead judgment.

Therefore, the Appellant having not been a party to the orders made against him or affecting his interest, this Court cannot allow the orders to stand. They are nullities and liable to be set aside. Same are hereby set aside. Accordingly, the order of injunction made on 3/6/2019 and 31/10/2019 are hereby set aside as I allow this appeal.

IBRAHIM WAKILI JAURO, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother, Adefope-Okojie JCA in this appeal. I entirely agree with his Lordship that the appeal is meritorious and is allowed.

It is indeed trite law that only parties to or in judicial proceedings of a Court of law in a case are subject to the jurisdiction of the Court and are to be legally bound by any findings, order, and decision reached therein. This is founded on Section 36(1) of the 1999 Constitution dealing with fundamental rights particularly in relation to fair hearing in the determination of his civil rights and obligations. Therefore, an order made or decision, taken against a person who is not a party to a case is not binding on such a person and so made in vain since it cannot be enforced against him. See A.G. LAGOS STATE V A.G. FEDERATION (2004) 18 NWLR PT 904 PG1. The Supreme in AZUH V U.B.N (2014) 10 SCM 114 AT PG 122 had with finality held inter alia thus: the non-joinder of a necessary party in a suit is an irregularity that does not affect the competence or jurisdiction of a Court to adjudicate the matter before it, however an order made against a person who is not a party to the action before the Court is to no avail and not binding on such non-party to the action. (Underline for emphasis). See also NNAEMEKA V CHUKWUOGOR (NIG.) LTD (2006)5 NWLR (PT 1020) PG. 60 AT 78. Consequently, in the light of the above, the orders made by the lower Court on 3rd day of June and 30th day of October, 2019 against the interest of the appellant are without basis and accordingly they are both hereby set aside. Parties to bear their costs.

Appearances:

Adebayo Badmus, Esq., For Appellant(s)

C. C. Emeruem, Esq., for 1st Respondent.

I.G. Okoroafor, Esq., for 2nd Respondent.
For Respondent(s)