By Olumide Babalola
In the past three days, news outlets have been inundated with reports, reviews and arguments on the propriety or otherwise of the Federal High Court’s decision nullifying section 84(12) of the Electoral (Amendment) Act which provision precludes political appointees from participating in primary elections of political parties in Nigeria.
Lawyers have expectedly analysed the speed, validity, aptitude, uprightness, mischief, morality and political undertone of decision of the Federal High Court, per Hon. Justice E.N. Anyadike sitting in Umuahia, Abia State on the 18th day of March 2022 setting a record of 11 days from commencement to judgment.
The analyses have been followed with repeated advice to stakeholders to challenge the decision but the attendant question had always been, how do you apply to stay a judgment without first becoming a party to the suit?
While it is elementary that non-parties to a case cannot ordinarily challenge the decision except granted leave, there are circumstances under which such persons can apply to stay such decisions even before applying for joinder.
As far back as 1988, the Supreme Court of Nigeria had answered that question in the case of Intercontractors Nigeria Limited v UAC of Nigeria Limited (1988) 2 NWLR (Pt. 76) 313 that:
“A person who is not a party to an action cannot apply for an order of stay of execution of the judgment given in that action, unless he can show that the action is a fraud on him. Gore v. Vander Lann (1967) 1 All ER 361.”
On the strength of the decision above, it is my respectful opinion that, if non-parties to the suit are able to establish fraud, they can validly apply for stay of execution of the judgment without first applying to be joined as parties to the suit.