MONDAY & ANOR v. ONAYEMEFE & ORS (2020)

MONDAY & ANOR v. ONAYEMEFE & ORS

(2020)LCN/14536(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, August 28, 2020

CA/A/438/2020

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

1. MR. ODUMAH MONDAY 2. MR. OGHENERHIVWE OGHENERO APPELANT(S)

And

ODEJEBOBO DESIRE ONAYEMEFE 2. LYNDON L. O. UGBOME -WARD 3 ETHIOPE EAST LGA DELTA STATE (Suing For Themselves And On Behalf Of The Executives And Delegates Of The Delta State APC Ward/ Local Government Congress Held On 5th And 12th Of May, 2018) 3. THE NATIONAL CHAIRMAN, ALL PROGRESSIVES CONGRESS (APC) 4. THE NATIONAL WORKING COMMITTEE ALL PROGRESSIVE CONGRESS (APC) 5. ALL PROGRESSIVE CONGRESS (APC) 6. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)

RATIO

THE MEANING OF THE TERM “PRE-ELECTION”

First let me start by giving meaning to connotation “PRE-ELECTION”. The word ‘PRE” which is a prefix, used to describe something as taking place before a particular date or event. (See John Sinclair Ed. BBC English Dictionary (Harper Collins Publishers, London 1992) 899. When we now talk of “Pre Election in the contest of the cause of action in the suit by the Appellants before the trial Court, it could be said that a “Pre Election relates to events occurring before the actual election. Bearing the foregoing in mind, the contention of the Appellant that the fact of the case presented by him does not qualify as a pre-election matter and Section 285(14) of the 1999 Constitution of the Federal Republic of Nigeria as against the contention of the Respondents that conduct of a party congress is geared toward the preparation for the selection of candidates to represent the APC in subsequent elections. Put in another way it is the process through which delegates, party Executives of political parties are elected. PER ONIYANGI, J.C.A.

PRE-ELECTION MATTERS
Under Section 285(14) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Pre-election is provided for as follows: SECTION 285(14) “For the purpose of this Section, “Pre-election matters means any suit by
(a) An aspirant who complains that any of the provisions of the Electoral, Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with by a political party in respect of selection or nomination of candidates for an election.
(b) An aspirant challenging the action, decision or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provision of the electoral Act or any Act of the National Assembly regulating Election in Nigeria has not being complied with by the Independent National Electoral Commission in respect of the election or nomination of candidates and participation in an election; and
(c) A political party challenging the action, decision or activities of the independent National Electoral Commission disqualifying its candidate been participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the independent National Electoral Commission in respect of the nomination of candidate of political parties for an election, timetable for an election registration of voters and other activities of the Commission in respect of preparation for election.
The apex Court has cause to pronounce on the scope of the foregoing constitutional provision in the case of ALL PROGRESSIVE CONGRESS V IBRAHIM UMAR AND 22 ORS (2019) 8 NWLR (Pt. 1675) P.9 564 at 568. SANUSI JSC provided the following meaning to “Election” and “Pre-Election”
“The word ‘Election’ means the process of choosing by popular votes, a candidate for political office in a democratic government. Any preparation or process embarked upon by a political party in preparation for an election can as well be regarded as “pre-election” or prior to the election or before the election as opposed to post-election which would relate to any exercise or process done after the election. Therefore the process or exercise embarked upon by a political party such as congress, nomination exercise etc, are all pre-election matters or exercise. The exercise involved in congress of political parties covers or include activities which are or should be done preparatory to an election, be it for the selection of officers to be member of the executive of the party, or as processes to elect or to prepare and qualify those elected at the congress ultimately vie for elective offices to represent the party in the legislature at either Local Government, State or Federal level. Such exercise is a pre-election exercise or matter to which the provisions of Section 285(14) of the 1999 Constitution (as amended) applies. PER ONIYANGI, J.C.A.

ABUSE OF COURT PROCESS

There are legion of authorities on what an abuse of Court process connotes. But to mention a few, I will refer to the case of PRINCE EYINADE OJO AND ORS V THE ATTORNEY GENERAL OF OYO STATE AND ORS (2008) 15 NWLR (Pt. 1110) 577, or (2008) LPELR- 2379 where Mohammed JSC on what constitutes abuse of Court process said thus: “The employment or use of judicial process is only regarded generally as an abuse when a party improperly uses the issue of judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice”
See also the cases of SARAKI V KOTOYE (1992) 9 NWLR (Pt. 264) 156 at 188, NNANA V NWANEBE (1991) 2 NELR (Pt. 172) 181, OLUTINRIN V AGAKA (1998) 6 NWLR (Pt. 554) 366, AFRICAN CONTINENTAL BANK PLC V DAMIAN IKECHUKWU NWAIGWE & 5 ORS (2011) LPELR – 208, INYANG EDET V THE STATE (1988) LPELR- 1008. PER ONIYANGI, J.C.A.

MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): In suit No. FHC/ABJ/CS/1505/2019, filed on 6th day of December, 2019 before the Federal High Court, Abuja, the Appellants in this appeal, who are Plaintiffs sought against the Respondents as Defendants by way of an Originating Summons, the following reliefs: (see page 3-7 of the Record of Appeal)
(i) DECLARATION that the consent judgment in suit No. FHC/ABJ/CS/509/2018 between Odjebobo Desire Onayafeme and Anor V. The National Chairman – All Progressive Congress (APC) and Anor is null and void same haven been granted without jurisdiction by this Honourable Federal High Court. (sic)
(ii) A DECLARATION that the terms of settlement dated the 1st day of June, 2018 and filed on the 5th day of June, 2018 in suit No. FHC/ABJ/CS/509/2018 between Odjebobo Desire Onayefeme and Anor V. National Chairman – All Progressive Congress (APC) and Anor having not been endorsed by the respective proper parties therein as ordered by this Honourable Federal High Court, (sic) failed to attain to the status of a consent judgment, hence invalid null and void.
(iii) A DECLARATION that the

Plaintiffs in suit No. FHC/ABJ/CS/509/2018 between Odjebobo Desire Onayefeme and Anor V The National Chairman – All Progressive Congress (APC) and Anor, lacked the authority to bring the said suit in a representative capacity thereby making the consequent consent judgment granted therein a nullity.
(iv) A DECLARATION that the Writ and consequent consent Judgment of suit No. FHC/ABJ/CS/509/2018 between Odjebobo Desire Onayefeme and Anor V The National Chairman – All Progressive Congress (APC) and Anor is null and void, same having been filed against non-juristic Defendants.
(v) A DECLARATION that the consent judgment in suit No. FHC/ABJ/CS/509/2018 between Odjebobo Desire Onayefeme and Anor Vs The National Chairman – All Progressive Congress (APC) and Anor is null and void same having been obtained by false misrepresentation.
(vi) AN ORDER setting aside the consent judgment in suit No. FHC/ABJ/CS/509/2018 between Odjebobo Desire Onayefeme and Anor Vs The National Chairman – All Progressive Congress (APC) and Anor same having been obtained by false misrepresentation and having been granted without jurisdiction.

(vii) AN ORDER nullifying any action taken in line with the terms of the consent judgment dated the 19th day of June, 2018 in suit No. FHC/ABJ/CS/509/2018 between Odjebobo Desire Onayefeme and Anor V The National Chairman – All Progressive Congress (APC) and Anor.
For the foregoing, the following questions were presented for determination namely:-
(1) Whether within the contemplation of Section 251(1)(a) to (s) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) the Federal High Court has the jurisdiction to be seized of the matter in suit No. FHC/ABJ/CS/509/2018 between Odjebobo Desire Onayefeme and Anor Vs The National Chairman – All Progressive Congress (APC) & Anor when none of the parties is a Federal Government Agency?
(2) Whether having regard to Section 251 (1) (a) to (s) of the1999 Constitution of the Federal Republic of Nigeria (as amended) considering the withdrawal of the suit No. FHC/ABJ/CS/509/2018 between Odjebobo Desire Onayefeme and Anor Vs The National Chairman – All Progressive Congress (APC) & Anor against the Independent National Electoral Commission (INEC), the Department of the

State Security (DSS) and Inspector General of Police, being the only Federal Government Agencies in the said suit, the Federal High Court was still seized of the requisite jurisdiction needed to grant the consent judgment in the suit?
(3) By virtue of paragraph 9 of proceedings document (i.e., the terms and conditions of the order of consent judgment) herein tagged “EXHIBIT D” which condition precedent required parties in suit No. FHC/ABJ/CS/509/2018 to endorse the terms of settlement in compliance with the said paragraph 9 made by the Honourable Federal High Court (sic) in its consent judgment whether the said terms of settlement dated the 1st day of June, 2018 and filed on the 5th day of June, 2018 can be said to have attained the status of a consent judgment?
(4) Whether or not the 1st and 2nd Defendant herein who were the Plaintiffs in suit No. FHC/ABJ/CS/509/2018 had the requisite authority to bring the action in a representative capacity for the acquisition of the consent judgment?
(5) Whether or not the defendants in suit No. FHC/ABJ/CS/509/2018 between Odjebobo Desire Onayefeme and Anor Vs The National Chairman – All

Progressive Congress (APC) & Anor are juristic personalities who can sue and be sued?
(6) Considering jurisdiction irregularities and misrepresentation surrounding the consent judgment in suit No. FHC/ABJ/CS/509/2018 between Odjebobo Desire Onayefeme and Anor Vs The National Chairman – All Progressive Congress (APC) & Anor, whether same is not liable to be set aside?

Processes were filed and exchanged between parties. Along the line, the jurisdiction of the Court to entertain the suit was challenged and some of the Defendants were dropped leaving the 1st and 2nd Defendants, i.e. THE NATIONAL CHAIRMAN – ALL PROGRESSIVE CONGRESS (APC) AND NATIONAL WORKING COMMITTEE – ALL PROGRESSIVE CONGRESS

In another development on 19th day of June, 2018, parties through their Counsel intimated the Court of their amicable settlement of the suit before it. It is on record that they have both executed the terms of settlement dated 1/6/2018 but filed on 5/6/2018. Based on the foregoing, the trial Court entered a consent judgment as per the said agreement dated 1/6/2018 and filed on 5/6/2018 between the parties. See pages 220 – 222 of

the Record of Appeal and pages 864 – 875 of the Record of Appeal for the enrolled order on the consent judgment. The terms of agreement that led to the consent judgment can be found on pages 883 to 888 of the Record of Appeal.

In suit No. FHC/ABJ/CS/1505/2019. The Appellants again approached the Federal High Court Abuja by way of an Originating Summons filed on 6/12/2019 herein before reproduced seeking for the reliefs therein stated.

In his considered judgment delivered on 10th day of June, 2020, the learned trial judge, Hon. Justice A. I. Chikere concluded thus: (see page 977 – 991 and in particular page 991).
“It must be borne in mind that justice is not only for the parties but the society. A decision to set aside the judgment will have negative implication on our democracy. It is my view that the present suit of the Plaintiff is akin to seeking from the Court a review of its decision. This Court is functus officio. In the circumstance, I hold that this suit is an abuse of Court process and is accordingly dismissed. I so hold. No order as to cost”.

Miffed by the foregoing outcome of the case, the Appellant

approached this Court with his notice of appeal dated 15th June, 2020 and filed on the 16th day of June, 2020. The said notice of appeal has in content (4) four grounds of appeal. Therein, he sought for the following reliefs: (See pages 992 – 998 of the Record of Appeal).

(1) An Order allowing this appeal.
(2) An Order setting aside the judgment of the lower Court delivered on 10th June, 2020 by his Lordship Hon. Justice A. I. Chikere in suit No. FHC/ABJ/CS/1595/2019 BETWEEN MR. ODUMAH MONDAY AND ANOR VS ODJEBOBO DESIRE ONAYEMEFE – WARD 2 UVWIE LGA DELTA STATE AND 5 ORS.
(3) The activation of the powers of the Honourable Court of Appeal to determined the suit and grant all the reliefs sought by Plaintiffs/Appellants in their Originating Summons pursuant to its powers granted by Section 16 of the Court of Appeal Act.
(4) AND SUCH FURTHER OTHER ORDERS as the Court may deem fit to make in the justice and circumstance of this Appeal.

Based on the following processes filed and exchanged by the respective Counsel, this appeal was heard and hence this judgment.

The Record of Appeal transmitted on 23/06/2020
(1) The

Appellants’ Notice of Appeal dated 15/6/2020 and filed on 16/6/2020.
(2) The Appellants’ Brief of Argument dated and filed on 30th day of June, 2020
(3) 1st and 2nd Respondents’ Brief of Argument filed on 15/7/2020.
(4) 3rd – 5th Respondents’ Brief of Argument filed on 15/7/2020.
(5) Appellants’ Reply Brief to the 1st and 2nd Respondents’ Brief of argument filed on 17/7/2020
(6) Appellants’ Reply Brief to the 3rd, 4th and 5th Respondent Brief of Argument filed on 17/72020

In the Appellants’ Brief of Argument authored by Bright I. Uche Esq., the following issues are distilled for the determination of the appeal:
(i) Whether or not the trial Court was right in abandoning the judicial precedent set by the Supreme Court in the novel case of SC. 1384/2019 between Ugwumba Uche V. Action People Party and 3 Ors by applying the principle of limitation of time to an alleged pre-election suit that is void ab-initio and a total nullity arising from lack of jurisdiction? (Ground 1)
(ii) Whether or not the trial Court was right to holding that the suit No. No. FHC/ABJ/CS/509/2018

BETWEEN ODJEBOBO DESIRE ONAYEFEME – WARD 2 UVWIE LGA DELTA STATE AND ANOR VS THE NATIONAL CHAIRMAN – ALL PROGRESSIVE CONGRESS (APC) & ANOR is a pre-election matter as contemplated by Section 285(14) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No. 21) act 2017? (Ground 4)
(iii) Whether or not the trial Court was right in holding that the suit of the Appellants was an abuse of Court process (Ground 2)
(iv) Whether or not the judicial powers of a Court to set aside it own decision made without jurisdiction is wrong and consequently amounts to a review of its decision? (ground 3)

On behalf of the 1st and 2nd Respondents, Nelson O. Imoh, Esq. formulated the following sole issue for the determination of this appeal.

Whether and having regards to Section 285 of the Constitution of the Federal Republic of Nigeria (as amended) the learned trial Court Coram Hon. Justice A.I. Chikere was right when he dismissed the case of the Appellants and refused to set aside its consent judgment in suit No. FHC/ABJ/CS/509/2018 dated 19th day of June, 2018 and on the suit of the Appellants (Grounds 1, 2, 3 and 4

of the Appellants’ Grounds of Appeal).

In the same vein, R. K. Abu Esq. representing the 3rd, 4th and 5th Respondents submitted the following issues for determination.
(1) Whether in view of the peculiar facts and circumstances before it, the trial Court was not right in law when it held that the Appellants’ suit constitutes abuse of Court process and akin to seeking a review of its decision which it is functus officio (Grounds 2 and 3)
(2) Whether the trial Court was not right in law when it held that the Appellants’ suit related to pre-election matter and not filed within time (Grounds 1 and 4)

Consequent upon a careful reading of the issues formulated by respective Counsel, and after comparing them with the complaint of the Appellants vide their grounds of appeal, I have decided to determine this appeal based on the issues formulated by the Appellants.

In resolving the issues, I have decided to take issues two first and thereafter issue one. These two issues would be taken together. In other words, two birds would be killed by one stone. Thereafter issues 3 and 4 would be taken if need be.

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(2) Whether or not the trial Court was right to holding that the suit No. No. FHC/ABJ/CS/509/2018 BETWEEN ODJEBOBO DESIRE ONAYEFEME – WARD 2 UVWIE LGA DELTA STATE AND ANOR VS THE NATIONAL CHAIRMAN – ALL PROGRESSIVE CONGRESS (APC) & ANOR is a pre-election matter as contemplated by Section 285(14) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No. 21) act 2017? (Ground 4)
(1) Whether or not the trial Court was right in abandoning the judicial precedent set by the Supreme Court in the novel case of SC. 1384/2019 between Ugwumba Uche V. Action People Party and 3 Ors by applying the principle of limitation of time to an alleged pre-election suit that is void ab-initio and a total nullity arising from lack of jurisdiction? (Ground 1)

The contention of the Appellants on issue number two is that neither the suit number FHC/ABJ/CS/509/2018 nor the Appellant’s Originating Summons to set aside the judgment of the trial Court can be said to be pre-election matters. For this purpose,he referred to Section 285(14) of the (1999) Constitution of the Federal Republic of Nigeria (4th Alteration Act) which

provides as follows:
“For the purpose of this Section, pre-election matter” means any suit by:-
(a) An aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates foe an election;
(b) An aspirant challenging the actions, decision or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the selection and nomination of candidates and participation in an election and
(c) A political party challenging the actions, decision or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or complain that the Electoral Act

or any other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election.

He added that from the foregoing definition vides Section 285 (14) of the 4th Alteration Act to the 1999 Constitution of the Federal Republic of Nigeria 1999, the suit number FHC/ABJ/CS/509/2018 which led to the consent judgment sought to be set aside, was instituted by aggrieved members of the 5th Defendant for the Election of party executive committee and so same was not instituted by aspirants nor political parties and that there was no complaint by the Plaintiff in the suit that the provision of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of the 5th Defendant herein being a political party and the provisions of the guidelines of the political party for the conduct of party primaries has not been complied with by the political party in respect of the selection or nomination of candidates for an

election. Appellants contended further that the Plaintiff in Suit No. FHC/ABJ/CS/509/2018 (1st and 2nd Respondents) not being aspirants for an elective position did not challenge the action, decisions or activities of the Independent National Electoral Commission. The Plaintiffs in the suit are not political parties but mere individuals. It is his case that the 5th Respondent had looked into various issues which arose out of its Delta State Congress held on the 5th and 12th of May, 2018. Through its organ known as the National Working Committee (NWC) wherein a decision was reached in favour of the congress result of the team led by one Chief Emmanuel Chindah as against the Congress result team led by Alh. Dadodo. The said congresses of both the 5th day and 12th day of May, 2018 were for the purpose of internal democracy of party official and leadership rather than of aspirants and candidates for an election. He contended that the 1999 Constitution of the Federal Republic of Nigeria did not categorize the congress of political parties and the election of executive for the leadership of a political party as a pre-election matter and hence the provision of

Section 285(a) of the 1999 Constitution of Nigeria (4th Alteration Act No. 21)does not apply to this suit same haven not been in the category of pre-election matters as defined by Section 285(14) of the Constitution.

ISSUE 1
Whether or not the trial Court was right in abandoning the judicial precedent set by the Supreme Court in the novel case of SC. 1384/2019 between Ugwumba Uche V. Action People Party and 3 Ors by applying the principle of limitation of time to an alleged pre-election suit that is void ab-initio and a total nullity arising from lack of jurisdiction? (Ground 1)

The Appellants’ argument is that the crux and main subject matter of the case of the Appellants at the Court below is that all the proceeding and judgment of the trial Court entered in respect of the suit haven been proceeded against non juristic personalities. He relied on the case of UGWUMBA UCHE NWOSU V ACTION PEOPLES PARTY AND 3 ORS – Appeal No. SC: 1384/2019. He argued that the Court struck out the suit of the Appellant on the ground that it was a pre-election matter and caught by the statute of limitation having regard to page 14 of its judgment (see page 999

of the record). It is his case that the trial Court applied the limitation law as a bar to rescinding from a judgment which is a nullity and void abinitio as against the contention of the Appellant that the suit is tainted with illegality and fraud which makes their acts (consent judgment obtained without jurisdiction) void and as such served as a general exception to the limitation law. He relied on the following casesAWOLOLA V GOVT. EKITI STATE (2019) 1668 447, NRMA AND F.C. V JOHNSON (2019) 2 NWLR (Pt. 1656) 269, HASSAN V ALIYU (supra) CRAIG V KANSEEN (1943) 1 ALLER 108.

He submitted that for an act to be covered and protected by a statute of limitation, it must be such that it is recognized by law as valid; it not it is void and beyond the scope of the statute of limitation, and hence the trial Court was wrong to have used it a basis for not reaching a decision on its jurisdiction and that Section 285(a) of the 1999 Constitution only protects or applies to legal action and not to an illegality or voided act. He added that the two Defendants in suit number FHC/ABJ/CS/509/2018 are mere names of positions of a juristic personally (APC) which was not

joined as a co-defendant in the said suit; he queried whether a mother body which has the capacity to sue and be sued be neglected and instead the internal organs and position created by the domestic rules of the said mother body be sued instead? He added that the 1st & 2nd Respondents as Plaintiffs failed to join the All Progressive Congress (APC as a Defendant in the said suit but rather sued mere organs of the APC. He relied on Section 80 of the Electoral Act, 2010 and Article 11 Paragraph A(iv) of the All Progressive Congress Constitution 2014 as amended. On who is a juristic person he referred to the case of AKAS V MANAGER (2001) 6 NWLR (Pt. 715) 436 at 444. It is his argument that as a general rule, a Plaintiff commencing an action and the person to be made Defendant to the action must be juristic person or natural person existing at the time the action was commenced, otherwise the action will be incompetent and the Court will lack the jurisdiction to entertain the matter. He relied on the case of OKECHUKWU AND SONS V NDAH (1976) NMLR 368. Suing a non-juristic party renders whatever proceeding conducted thereon a nullity. He relied on the case of

LAGOS STATE TRAFFIC MANAGEMENT AUTHORITY AND ORS V JOHNSON O. ESEZOBO (2015) LPELR – 25003, FEDERAL UNIVERSITY OF TECHNOLOGY MINNA AND ORS V. DR (MRS.) ADAEZE G.N.C. OKOLI (2011) LPELR – 9053. He contended that the consequence and or effect of a proceeding or judgment or order made in a case without juristic person is as laid down in the case of OKECHUKWU AND SONS V NDAH (1976) NMLR 368 to the effect that suing a non juristic party renders whatever proceeding conducted thereon a nullity and that it is only a person known to law that could sue and be sued. That is to say that no order or judgment of the Court can be made against a non juristic person. He relied on the case of WORLD MISSION AGENCY V CHIEF OLUFEMI SODEINDE AND ANOR (2012) LPELR – 19738. In addition, he argued that the question of proper parties is a very important issue and which affects the jurisdiction of the Court as it goes to the foundation of the suit in limine.Where the proper parties are not before the Court, the Court lacks jurisdiction to hear the suit. He relied on the following cases:BEST VISION CENTRE LIMITED V. U. A C.P.D.C PLC (2003) 13 NWLR (Pt. 838) 594, IKEME V ANKURE (2000) 8 NWLR (Pt. 669) 484

PEENOK LTD V HOTEL PRESIDENTIAL (1983) 4 NCLR 122, EHIDIMHEN V MUSA (2000) 8 NWLR (Pt. 669) 540, GOODWILL AND TRUST INVESTMENT LTD AND ANOR V. WITT AND BUSH LTD (2011) ALL FWLR (Pt. 576) 517 at 542 – -543; ADISA V OYINWOLA (2000) 10 NWLR (Pt. 647) 116.

On consequence of a judgment being a nullity, he relied on the case ofMACFOY V UNITED AFRICAN CO. LTD (1961) 3 ALL ER 1169 where it was held thus:
“If an act is void, then it is in law a nullity, it is not only bad but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without much ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

For the foregoing, he submitted that suit No. FHC/ABJ/CS/509/2018 is void and constitutes a nullity which is not qualified to be categorized as a pre-election matter which is worthy of the protection of Section 285(a) of the 4th Alteration to the Constitution of the Federal Republic of Nigeria 1999

and the Court lacks the jurisdiction to entertain it in that there is no Federal Government presence in it having regard toSection 251(1), (2), (3) and (4) of the 1999 Constitution of the Federal Republic of Nigeria. He relied on the case of VULCAN GASES LIMITED V GESELLSCHAFT FUR INDUSTRIES GAD VERWERTUNG A. G (G.I.V) (2001) LPELR – 3465 (SC), FEDERAL COLLEGE OF EDUCATION (SPECIAL) OYO V. CHIEF AKIN AKINYEMI (2007) LPELR – 8482, MINISTER OF WORKS V TOMAS NIG LTD (2002) 2 NWLR (Pt. 752) 740 at 788, UNIVERSITY OF ABUJA V OLOGE (1996) 4 NWLR (Pt. 445 706, NEPA V EDEGBERO (2002) 18 NWLR (Pt. 798) 79 at 100. He contended further that the said Congresses of both the 5th and 12th day of May, 2018 were not for the purpose of electing an aspirant for the 5th Defendant who will participate in the general election being conducted by the 6th Defendant. The said congresses of both 5th and 12th day of May, 2018 were for the purposes of internal democracy of party officials and leadership rather than of aspirant and candidates of an election. He argued that the 1999 Constitution of Nigeria did not categorize the congress of political

parties and the election of Exco for the leadership of a political party as a pre-election matter and that the suit of the Appellants at the trial Court was also not a pre-election matter and therefore, the provision of Section 285(a) of the 199 Constitution of the Federal Republic of Nigeria (4th Alteration Act No. 21) does not apply to suit No. FHC/ABJ/CS/509/2018 as a pre-election matter as defined under Section 285(14) of the Constitution. He urged the Court to resolve the issued in favour of the Appellant.

The 1st and 2nd Respondents in reacting to the contention of the Appellant submitted that having regard to Section 285 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the learned trial judge was right when he dismissed the case of the Appellant and refused to set aside its consent judgment in suit No. FHC/ABJ/CS/509/2018. He added that the decision of the trial Court represents the law with regards to pre-election matter and which is sui generis and hence the Appellant’s suit commenced on 6th day of December, 2019, being a complaint with regards to a pre-election decision delivered on 19/6/2020, robs the Court of its

jurisdiction to entertain same. He added that issue of jurisdiction is fundamental to the question of competence of a trial Court. He relied on the case of KALIO V DANIEL (1976) 12 SC 175, BARCLAYS BANK OF NIGERIA V CENTRAL BANK OF NIGERIA (1976) 6 SC 175.

It is his contention that the essential elements for the exercise of jurisdiction by a Court are that:
(a) The subject-matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction.
(b) The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.

He argued that any defect in competence is fatal and the proceeding however well conducted without competence is a nullity. He relied onMADUKOLU V NKEMDILIM (1962) 2 SCNLR 341, ODOFIN V AGU (1992) 3 NWLR (Pt. 229) 350 at 365, Paragraphs G-H; OSAFILE V ODI (No 1) (1990) 3 NWLR (Pt. 137) 130, A.G ANAMBRA STATE VS A.G. FEDERATION (1993) 6 NWLR (Pt. 302) 692, SALEH V. MONGUNO (2003) 1 NWLR (Pt. 801) 221, DINGYADI V INEC (No.1) (2010) 18 NWLR (Pt. 1224) 1 at pp. 137-138, AKERE V GOVT. OYO STATE (2012) 12 NWLR (Pt. 1314) 240 at 207.

Still on the jurisdiction of Court, he submitted that it is determined by the claim of the Plaintiff as endorsed in the Writ of Summons and Statement of Claim. He relied on the following cases ONUORAH V KADUNA REFINARY AND PETROCHEMICAL Co. LTD (2005) ALL FWLR (Pt. 256) 1356 at 364, TUKUR V GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (Pt. 117) 617, ORTHOPAEDIC HOSPITALS MANAGEMENT BOARD V GARBA (2002) FWLR (Pt. 123) 200, ADEYEMI VS OPEYORI (1976) 6-10 SC 31. Referring to the question for determination submitted by the Appellant in his suit No. FHC/ABJ/CS/509/2018 thus:
“Considering jurisdictional irregularity and misrepresentation surrounding the consent judgment in suit No. FHC/ABJ/CS/509/2018 between ODJEBOBO DESIRE ONAYEFEME AND ANOR V. THE NATIONAL CHAIRMAN (APC) AND ANOR. Whether same is not liable to be set aside”

Based on the foregoing, he argued that the claim of the Appellant vide his Originating Summons dated 6th day of December, 2019, was for the exercise of judicial powers of the trial Judge to set aside its judgment, delivered on 19th day of June, 2018 and hence, not within the

judicial competence of the learned trial Court. He referred to Sections 249 and 253 of the Constitution of the Federal Republic of Nigeria 1999and the following cases: ITPP LTD VS UNION BANK PLC (2006) ALL FWLR (Pt. 324) 1789, (2006) 12 NWLR (Pt. 995) 483 at 505, FEDERAL POLYTECHNIC OFFA V. UBA PLC (2014) ALL FWLR (Pt. 737) 1213 (2006) 12 NWLR (Pt. 993) 33 ASSOCIATED DISCOUNT HOUSE LTD VS AMALGAMATED TRUSTEES LTD (2006) ALL FWLR (Pt. 320) 1008 CHS Co. LTD VS MIGFO (NIG) LTD (2012) 19 NWLR (Pt. 1333) 555. He added that the jurisdiction of the trial Court was ousted by virtue of Section 285(a) of the Constitution of Nigeria 1999 (Fourth Alteration No. 21) Act, 2017. Referring to paragraphs 3, 5, 13, 17 and 24(c) of the affidavit in support of the Originating Summons filed on 6/12/2019 he submitted that the case of the Appellant as constituted was a pre-election matter. By virtue of Section 285(a) the action of the Appellant ought to be filed with 14 days and which was not so filed. It is his case that the Appellants, whose claim arose from such complaint as stated in paragraph 4.16 above was filed on the 6th day of December, 2019 several months after the act

complained of. He argued that the case of the Appellants was filed over and above the time, manner, mode, period and condition precedent stipulated under the Fourth Alteration No. 21, Act 2017. Therefore, the originating process of the Appellant was not initiated by due process of Court. He referred to MADUKOLU VS NKEMDILIM (1962) 2 SCNLR 341, ODOFIN V AGU (1992) 3 NWLR (Pt. 229) 350 at 365. On the position of the law that when time to file an action in pre-election matters elapsed, the trial Court cannot enlarge such time. He relied on the cases of: UDENWA V UZODINMA (2013) 5 NWLR (Pt. 1346) 94 at pp.118, ADAH V. NYSC (2004) 13 NWLR (Pt. 891) 630, C.P.C V YUGUDA (2013) 7 NWLR (Pt. 1354) 450 at 459 para. E, OKE V MIMIKO (2014) 1 NWLR (Pt. 1388) 225, UGBA VS SUSWAM (2013) 4 NWLR (Pt. 1345) 427. He argued that in law, where there is a condition precedent to the exercise of jurisdiction by a Court, the jurisdiction is ousted and the Court acts ultra vires, if conditions not first fulfilled. He relied on the case of OGAJI V IGONIKAN-DIGBANI (2010) 10 NWLR (Pt. 1202) 289 at 310, AJANAKU V COP (1979) 3-4 SC 28, MADUKOLU V NKEMDILIM (1962) 2 SC NLR 341. He urged the

Court to dismiss the appeal in limili and with substantial cost.

On validity of consent judgment he submitted that the contention of the Appellant’s in what they referred to in their 1st and 3rd issues in their brief of argument is misplaced. He relied on the decision of this Court in Appeal No. CA/B/248/2019. He argued that where an issue has been successfully and conclusive determined by a Court of competent jurisdiction, no party should be encouraged to re-litigate same issue as there must be an end to litigation. He relied on the cases of ARO V FABOLUDE (1983) 1 SCNLR 58, ADEDAYO V BABALOLA (1995) NWLR (Pt. 408) 383. He argued that being the case of the Appellants before the trial Court, they are estopped from relitgating the issue of the fraudulent nature of the consent judgment of the trial Court delivered on 19/6/2018 same having already been decided in suit No FHC/ASB/CS/110/2018, APPEAL NO. CA/B/248/2010 and Supreme Court in SC/752/2019, ABUBAKAR V B.O AND A.P LIMITED (2007) 18 NWLR (Pt. 1066) 319. He added that the suit of the Appellant was brought mala fide and constituted a gross abuse of the judicial process of the Court. He relied on

the cases of FIRST BANK OF NIGERIA PLC V T.S.A INDUSTRIES LIMITED (2012) LPELR – 9714; ARUBO V AIYELERU (1993) 3 NWLR (Pt. 280) p. 126 at p. 142. He added that the jurisprudence behind the principle of res judicata is that the parties suing on the same subject matter as in the case of the Appellants in the lower Court are precluded at law from litigating the subject matter in piece meal and in different Courts. He relied on the case of DZUNGWE V GBISHE (1985) NWLR (Pt. 8) 528.

He argued that the jurisdiction of the Court to entertain the claim of the 1st and 2nd Respondents as Plaintiffs in suit No. FHC/ABJ/CS/509/2018 and to have in dispute, and as clearly provided for under the Electoral Act Section 87 that the act of conducting Wards, Local Government and State congress by the APC was a process which will finally culminated in the nomination and election of the 5th Respondent APC’s National officials nay its Presidential candidate for the 2019 General Election in Nigeria. He added that the Courts are creation of statute and that their jurisdiction are spelt out in the relevant statutory enactments like in the instant case i.e. Section 87(a) of the Electoral Act, 2010 as amended.

He cited in aid the cases of B.B. APUGO AND SONS LTD V. O.H.M.B (supra) at 206-240, NYAME V F.R.N. (2010) 7 NWLR (Pt. 1193) 344 at pp. 393 – 394.

He urged the Court to discountenance the application of the principles enunciated by the Supreme Court in the case of UGWUMBA UCHE NWOSU V ACTION PEOPLES PARTY & 3 ORS in appeal No. SC 1384/2019 delivered on 20/12/2019 as the fact and circumstances of the case in issue is apposite the fact and circumstances of the 1st and 2nd Respondents’ case.

He asked us to dismiss the appeal with substantial cost.

The reaction of the learned Counsel representing the 3rd -5th Respondents Mr. B.K. Abu Esq. in respect of the issues is that in view of the peculiar fact and circumstances before the trial Court, the Court was right in law and its decision completely unassailable when it held that the Appellants’ suit constitutes abuse of Court process and akin to seeking a review of its decision which it is functus officio. He argued that issue of abuse of Court process is also issue of jurisdiction. He relied on the case of USMAN V BABA (2005) 5 NWLR (Pt. 917)

113 at 132 paras. E-A. On what constitutes an abuse of Court process, he relied on the cases of KOTOYE V SARAKI (1992) 9 NWLR (Pt. 264) 156 at 188; OWONIKOKO V AROWOSAIYE (1997) 10 NWLR (Pt. 523) 61 at 76; AGWASIM V OJICHIE (2004) 10 NWLR (Pt. 882) 613 at 622-623. Referring to the 4th and 5th Respondents’ preliminary objection, affidavit in support, he submitted that the peculiar facts and circumstances of this case as shown in the said affidavit evidence clearly shows that the Appellants’ suit at the trial Court constitutes gross abuse of Court process. He relied on the case of DURBAR HOTEL PLC V ITYOUGH (2017) (Pt. 1564) 256 at 269-270. He argued that the parties, their privies, subject matter and the issue in the said suit No. FHC/ASB/CS/76/2018 filed at the Federal High Court Asaba Division, are the same as the parties, their privies, the subject matter and the issues in the Appellants’ suit, subject matter of this appeal. The relief sought and the facts averred in the statement of claim in the said suit No.FHC/ASB/CS/76/2018 relate to the validity of the congress conducted by the Alhaji Sanni Dadodo Committee and Hon. Emmanuel Chinda led

committee for the election of officers in the 270 wards, in the 25 Local Government Area and the State Executives of the APC in Delta State on the 5th, 12th and 21st day of May, 2018. It is his argument that the Plaintiffs in suit No. FHC/ASB/CS/76/2018 who represented the Appellants in the said suit, won at the Federal High Court Asaba, on appeal to the Court of Appeal, Benin Division, the said judgment of the Federal High Court Asaba Division was set aside by the Court of Appeal Benin Division in Appeal Nos. CA/B/176/2019 and CA/B/179/2019. (Exhibits “D” and “E”) attached to the affidavit in support of the 4th and 5th Respondents’ preliminary objection (see pages 749 -784 and 785-833) of the record of Appeal. The Appellant appealed against the said judgments of the Court of Appeal Benin Division to the Supreme Court but consequently withdrew the appeal and same was dismissed by the Supreme Court. With the withdrawal of the appeal, what remains extant is the judgment of the Court of Appeal in appeals herein before mentioned. Wherein the parties are same, subject matter is also same. He relied on the case of MIN. FOR WORKS V TOMAS (NIG) LTD (2002) 2 NWLR (Pt. 752) 740 at 780 paras. E-H.

The Appellants in this appeal knowing that the judgment obtained by them at the Federal high Court Asaba was set aside by the Court of Appeal against the said judgment of the Court of Appeal to the Supreme Court was withdrawn, the Appellants quickly filed the suit which is the subject matter of the appeal, raising similar issue already laid to rest by the sound judgments of the Court of Appeal Benin Division in Appeal No. CA/B/196/2019 and CA/B/197/2019. He submitted that this is a clear case of abuse of Court process. The Appellants engaged in piece-meal litigation. He referred to the case ofNJOKANMA V MOWETE (2001) 6 NWLR (Pt. 709) 351 at 364, AKINSEYE V SAFA SPLINTS LTD (1992) 7 NWLR (Pt. 257) 241 at 248, OBLA V OTAGOYI (2007) 5 NWLR (Pt. 1027) 304 at 323 paras. A-B, PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD V ABAYOMI BABATUNDE (2007) LPELR – 4826.

On status of consent judgment in suit No. FHC/ABJ/CS/509/2018, he submitted that the issue of the consent judgment has been laid to rest. Narrating how the Plaintiff claimed to be winner at the congress decision and his subsequent suit to

declare him the elected executive of the 5th Respondent. How the suit was dismissed and the subsequent appeals to the Court of Appeal and the Supreme Court respectively. He submitted that the aforesaid judgments are in rem and are binding on everybody including the Appellant. By those judgments by the appellate Court, the status of the judgment of the Federal High Court was put to rest. He relied on the cases of IGWEMMA V. OBIDIGWE (2019) 16 NWLR (Pt. 1697) 117 at 138-139, YANATY PETROCHEMICAL LTD V EFCC (2017) LPELR – 43473, GBEMISOLA V BOLARINWA AND ORS (2014) 9 NWLR (Pt. 1411) pg. 1; SOSAN AND ORS V ADEMUYIWA (1986) 1 NSCC 673 at 680; IDRIS V ANPP (2008) 8 NWLR (Pt. 1088) 1 at 120. Those judgments clearly showed that the issue relating to the validity of the consent judgment in suit No FHC/ABJ/CS/509/2019 has been put to rest. He added that having held that the suit constitutes an abuse of Court process, the consent judgment remains a final judgment which can only be reviewed by an appellate Court and not the High Court.

He submitted in conclusion that the appellant has not sufferedany miscarriage of justice as a result of the decision of the

trial Court. He urge the Court to dismissed the appeal with substantial cost against the Appellant.

On issue two which is whether the said trial Court was right in law when it held that the Appellants’ suit relates to pre-election matter and not filed within time.

The contention of the 3rd-5th Respondents is that the trial Court was right in law and on a strong wicket when it held that the Appellants’ suit before it relates to pre-election matter and not filed within time as same was not filed within 14 days from the date the cause of action arose as stipulated in Section 285(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). He argued further that the trial Court know about the purport of the Appellants’ suit which is the subject matter of this appeal and which the trial Court stated in suit No. FHC/ABJ/CS/509/2018 this:
“In the instant case, the Plaintiffs sought to set aside the consent judgment of this particular Court delivered on 19th June, 2018 in suit No. FHC/ABJ/CS/509/2018 (Odjebobo Onayefeme V National Chairman, All Progressive Congress and Anor) on the ground of false

misrepresentation and lack of jurisdiction”
(See page 985 of the record)

Further the Court added as follows:
“The 1st and 2nd Defendants objected to the jurisdiction of the Court to entertain the suit amongst other grounds that this suit is a pre-election matter and that it res judicata…”

He submitted that the aforesaid decisions are completely unassailable. The Appellants’ suit relates to the congress and by extension the primary election of the All Progressive Congress in Delta State. He added that it is trite law that where a suit relates to party congress, it is pre-election matter. He relied on the case of A.P.C. V UMAR (2019) 8 NWLR (Pt. 1675) 564 at 575-576. He argued further that on the status of the suit by the Appellants and the reliefs sought visa vis the consent judgment. He brought to bearthe terms of the consent judgment (see pages 21-22). It is his contention that the consent judgment for all intent and purposes relates to the congress in Delta State and by extension the party primaries conducted with the participation of delegates who emerged from the said congress. Thus clearly shows that the said suit is

pre-election matter. Being a pre-election matter it must be filed within 14 days from the date of accrual of cause of action. On how to determine when a cause of action accrues for the purposes of determining the limitation period resort is had to the statement of claim in the instance case is the Originating Summons. He relied on the case of SIFAX NIGERIA LTD AND ORS V MIGFO NIGERIA LTD AND ANOR (2015) LPELR – 24655, YARE V NSIWC (2006) 2 NWLR (Pt. 965) 546 at 553, MARWA V NYAKO (2012) 6 NWLR (Pt. 1296) 199 at 286, ANPP V GONI (2012) 7 NWLR (Pt. 1298) 147 at 182 – 183 paras F-A.

He argued that the legal consequence of a suit being statute barred is that it is rendered incompetent and that the Court abinitio lacked the requisite jurisdiction to have entertained the suit, hence the trial Court was completely right in law when it held that the Appellants’ suit relates to pre-election matter and same was not filed within time as stipulated in Section 285(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). He urged the Court to affirm the decision of the trial Court.

On the applicability of the appeal No

SC.1384/2019 between UGWUMBA UCHE NWOSU V ACTION PEOPLES PARTY AND 2 ORS delivered by the Supreme Court on 20th day of December, 2019, he submitted that the said decision is completely inapplicable to the peculiar facts and circumstances of this case for several reasons. It is his contention that the effect of an action pronounced statute barred by a Court of law is that a party who instituted the said action automatically looses the right to approach the Court to ventilate his grievances on the issues raised in the said suit. He relied on the cases of CIL RISK AND ASSET MANAGEMENT LTD V EKITI STATE GOVT. AND ORS (2020) LPELR- 49565, ASABORO AND ANOR VS PAN OCEAN OIL CORPORATION (NIG) LTD AND ANOR (2017) LPELR- 41558; CBN AND ORS V OKOJIE (2015) LPELR- 24740, IGWEMMA V OBIDIGWE (2019) 16 NWLR (Pt. 16970 117 at 138- 139 paras. F-F. He argued further that the ratio in the Supreme Court case of UGWUMBA UCHE NWOSU V ACTION PEOPLES PARTY AND ORS (supra) is on double nomination which is void by virtue of Section 37 of the Electoral Act, 2010 (as amended) as opposed to the valid subsisting consent judgment in the suit from which this appeal originated. The said

consent judgment was affirmed when all the subsequent appeals were struck out and in the end dismissed by the Supreme Court same having being withdrawn. Therefore, the decision of the apex Court in UGWUMBA UCHE NWOSU V ACTION PEOPLES PARTY AND ORS (supra) cannot apply to this case. He added that the decision is completely inapplicable to the peculiar facts and circumstances of this case hence the trial Court was right in law not to have followed same. Re relied on the case of BOOTHIA MARITIME INC V. ORIENTAL TRADING AND T.A. LTD (2001) 8 NWLR (Pt. 716) 534 at 545.

He urged the Court to resolve the issues against the Appellants.

Upon a careful reading of the foregoing arguments for and against, the bone of contention in this appeal in my humble view is very narrow. The question is whether or not the suit number FHC/ABJ/CS/509/2019 is a pre-election matter and whether the finding of the learned trial judge that the suit constitutes an abuse of Court process is proper in the circumstance of the fact of this case?

In order to determine the first question, which is on whether or not the suit of the Appellants before the Federal High Court Abuja in suit No.

FHC/ABJ/CS/1505/2019 between Mr. Odumah Monday and Anor Vs Odjebobo Desire Onayefeme and 5 Ors which is predicated on the decision in suit No. FHC/ABJ/CS/509/2018 between Odjebobo Desire Onayefeme and Anor Vs The National Chairman All Progressive Congress (APC) and Anor is a pre-election matter. In suit number FHC/ABJ/CS/509/2018, the Plaintiffs who are 1st and 2nd Defendants in suit No. FHC/ABJ/CS/1505/2019 and 1st and 2nd Respondent in this appeal sought for the following reliefs:
(1) “Whereof the Plaintiffs claim jointly and severally against the Defendants as follows:
(A) A DECLARATON that by the All Progressive Congress (APC)Guidelines for Ward, Local Government and State Congress, it is only the duly appointed Congress Committee ably led by Alhaji Dadodo that is empowered to conduct, supervise, collate and declare/announce result of Ward, Local Government and State congress in Delta State.
(B) A DECLARATION that the result of the 270 Wards and Local Government Areas Congresses declared on the 5th and 12th of May, 2018, by the Alhaji Sanni Dadodo led Committee, is valid and binding on all members of the All Progressive Congress (APC)

in Delta State.
(C) A declaration that any other Ward and Local Government Area congress organized on behalf of the Delta State on the 5th and 12th day of May, 2018, whether within or outside Delta State and any result declared therefrom other than by the Alhaji Sanni Dadodo led Committee is an aberration and therefore null and void.
(D) An Order of this Honourable Court directing the Defendants and the entire leadership of the All Progressive Congress (APC) to accept and recognize only the result of the Local Government Congress as declared by the Alhaji Sanni Dadodo led Congress Committee.
(E) An order of perpetual injunction restraining the 1st and 2nd Defendants, there privies, allies, agencies, organs, State agents, party representatives wherever, howsoever and whatsoever called and located within the Federation of Nigeria particularly in Delta State from enforcing or causing to be carried out or giving effect to or executing or implementing in any manner and from accepting and recognizing against the interest of the Plaintiffs/Appellants, any other committee and the Ward, Local Government Area or State congress results from Delta State

declared by such other Committee than the one validly declare by the Alhaji Sanni Dadodo led Congress Committee.
(F) An Order of perpetual injunction restraining the 3rd and 4th Defendants, their privies, allies, agencies, organs, men, operatives, officers wherever in any of their commands howsoever and whatsoever called and located within the Federation of Nigeria particularly in Delta State from accepting and recognizing against the interest of the Plaintiffs/Applicants and giving any security backup and protection to any other committee and the Ward, Local Government Area or State Congress from Delta State other than the Alhaji Sanni Dadodo led Congress Committee.
(G) An Order of perpetual injunction restraining the 5th Defendant, its privies allies, agencies, organs, electoral officers, State electoral commissioners, adhoc staff wherever, howsoever and whatever called and located within the Federation of Nigeria particularly in Delta State from enforcing or causing to be carried out or giving effect to, or executing or implementing in any manner and from accepting and recognizing against the interest of the Plaintiffs/Applicants, any other

Committee and the Ward, Local Government Area or State Congress result from Delta State declared by such other Committee other than the one validly declared by the Ahaji Sanni Dadodo led Committee.

By a notice of discountenance the 3rd, 4th and 5th Defendants were removed as Defendants in the suit. In another development, an amicable settlement was initiated and which led to filing, executing and adoption of the terms of settlement dated 1st day of June, 2018 but filed on the 5th day of June, 2018. A consent judgment was entered on the 19th day of June, 2018 in the following terms (See page 220-222 of the Record of Appeal)
“The terms of judgment dated 1/6/2018 but filed on 5/6/2018 is hereby entered as consent judgment between parties.
No Order as to cost.
Signed
Hon. Justice A.I. Chikere
(Presiding judge)

Dissatisfied with the foregoing development, the Appellants by way of an Originating Summons again approached the Federal High Court Abuja vide suit No. FHC/ABJ/CS/1505/2018 seeking against the 1st and 2nd Respondents and 4 others as Defendants the following reliefs (See pages 3-7 of the Record of Appeal). Let me quickly

put on record that this suit was filed after unsuccessful appeals to the Court of Appeal and the withdrawal of Appeal at the Supreme Court.

“(i) A DECLARATION that the consent judgment in suit No. FHC/ABJ/CS/509/2018 between Odjebobo Desire Onayefeme and Anor Vs The National Chairman – All Progressive Congress (APC) and Anor is null and void same haven been granted without jurisdiction by this Honourable Federal High Court.
(ii) A DECLARATION that the terms of settlement dated the 1st day of June, 2018 and filed on the 5th day of June, 2018 in suit No. FHC/ABJ/CS/509/2018 between Odjebobo Desire Onayefeme & Anor Vs The national Chairman – All Progressive Congress (APC) & Anor. having not been endorsed by the respective proper parties therein as ordered by this Honourable Federal High Court, failed to attain the status of a consent judgment, hence invalid, null and void.
(iii) A DECLARATION that the Plaintiff in suit No. FHC/ABJ/CA/509/2018 between Odjebobo Desire Onayefeme & Anor Vs The National Chairman – All Progressive Congress (APC) & Anor lacked the authority to bring the said suit in a representative capacity

thereby making the consequent consent judgment granted therein a nullity.
(iv) A DECLARATION that the Writ and consequent consent judgment in suit No. FHC/ABJ/CS/509/2018 between Odjebobo Desire Onayefeme & Anor Vs The National Chairman – All Progressive Congress (APC) & Anor is null and void, same having been filed against non juristic Defendants.
(v) A DECLARATION that the consent Judgment in suit No. FHC/ABJ/CS/509/2018 between Odjebobo Desire Onayefeme & Anor Vs The National Chairman – All Progressive Congress (APC) & Anor is null and void same haven been obtained by false misrepresentation.
(vi) An ORDER setting aside the consent judgment in suit No. FHC/ABJ/CS/509/2018 between Odjebobo Desire Onayefeme & Anor Vs The National Chairman All Progressive Congress (APC) & Anor same haven been obtained by false misrepresentation and haven been granted without jurisdiction.
(vii) AN ORDER nullifying any action taken in line with the terms of the consent judgment dated the 19th day of June, 2018 in suit No. FHC/ABJ/CS/509/2018 between Odjebobo Desire Onayefeme & Anor Vs The National Chairman – All Progressive

Congress (APC) & Anor”

Parties joined issues on the foregoing claim and in the end, the learned trial judge in his considered judgment which can be found on pages 977 – 991 of the Record of Appeal entered judgment against the Plaintiffs/Appellants in the following terms, (See pages 991 of the record of Appeal)
“In the circumstance, I hold that this suit is an abuse of Court process and is accordingly dismissed. I so hold.
No order as to cost”

The foregoing outcome did not go well with the Appellants hence this Appeal. Looking critically on the matter which resulted into the consent judgment the Appellants sought to set aside and which was refused by the learned trial Court and thereby leading to this appeal, all the reliefs sought and the questions for determination are anchored on the result of the 270 Wards and Local Government Area Congress of All Progressive Congress (APC) Delta State declared on the 12th May, 2018 by the Alhaji Sanni Dadodo led Congress Committee. The simple question is whether such congress election and result can be said to be within the contemplation of Section 285 (14) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)

as a pre-election matter. First let me start by giving meaning to connotation “PRE-ELECTION”. The word ‘PRE” which is a prefix, used to describe something as taking place before a particular date or event. (See John Sinclair Ed. BBC English Dictionary (Harper Collins Publishers, London 1992) 899. When we now talk of “Pre Election in the contest of the cause of action in the suit by the Appellants before the trial Court, it could be said that a “Pre Election relates to events occurring before the actual election. Bearing the foregoing in mind, the contention of the Appellant that the fact of the case presented by him does not qualify as a pre-election matter and Section 285(14) of the 1999 Constitution of the Federal Republic of Nigeria as against the contention of the Respondents that conduct of a party congress is geared toward the preparation for the selection of candidates to represent the APC in subsequent elections. Put in another way it is the process through which delegates, party Executives of political parties are elected.
Under Section 285(14) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)

. Pre-election is provided for as follows:
SECTION 285(14)
“For the purpose of this Section, “Pre-election matters means any suit by
(a) An aspirant who complains that any of the provisions of the Electoral, Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with by a political party in respect of selection or nomination of candidates for an election.
(b) An aspirant challenging the action, decision or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provision of the electoral Act or any Act of the National Assembly regulating Election in Nigeria has not being complied with by the Independent National Electoral Commission in respect of the election or nomination of candidates and participation in an election; and
(c) A political party challenging the action, decision or activities of the independent National Electoral

Commission disqualifying its candidate been participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the independent National Electoral Commission in respect of the nomination of candidate of political parties for an election, timetable for an election registration of voters and other activities of the Commission in respect of preparation for election.
The apex Court has cause to pronounce on the scope of the foregoing constitutional provision in the case of ALL PROGRESSIVE CONGRESS V IBRAHIM UMAR AND 22 ORS (2019) 8 NWLR (Pt. 1675) P.9 564 at 568. SANUSI JSC provided the following meaning to “Election” and “Pre-Election”
“The word ‘Election’ means the process of choosing by popular votes, a candidate for political office in a democratic government. Any preparation or process embarked upon by a political party in preparation for an election can as well be regarded as “pre-election” or prior to the election or before the election as opposed to post-election which would relate to any exercise or process done after

the election. Therefore the process or exercise embarked upon by a political party such as congress, nomination exercise etc, are all pre-election matters or exercise. The exercise involved in congress of political parties covers or include activities which are or should be done preparatory to an election, be it for the selection of officers to be member of the executive of the party, or as processes to elect or to prepare and qualify those elected at the congress ultimately vie for elective offices to represent the party in the legislature at either Local Government, State or Federal level. Such exercise is a pre-election exercise or matter to which the provisions of Section 285(14) of the 1999 Constitution (as amended) applies.
In the instant case, the suit being an exercise before or prior to election was caught by or was within the purview of Section 285(14) of the 1999 Constitution (as amended) OJUKWU V OBASANJO (2004) 12 NWLR (Pt. 886) 169; BUHARI V. OBASANJO (2005) 2 NWLR (Pt. 910) 241. (underline is mine)
By the foregoing dictum, and considering the fact of the appeal at hand which is impari material if not same with the fact in that case,

one is left in no doubt that the conduct of the congress of the All Progressive Congress which is the subject matter of the contest between the parties in this appeal is a pre-election matter within the meaning of Section 285(14) of the 1999 Constitution of the Federal Republic of Nigeria. I accordingly so hold.
From the foregoing, it then stand to reason to conclude that the learned trial judge was on a sound and firm footing in coming to the conclusion that the fact in the case of UGWUMBA UCHE NWOSU VS ACTION PEOPLES PARTY Appeal No SC1384/2019 is distinguishable to the fact in this appeal. The issue in contention there is that of double nomination as against the fact in this appeal which is on party congress and which is same with the fact in the case of A.P.C. V. UMAR (supra). For the foregoing, it is my conclusion that the action by the Appellant is a pre-election matter hence I resolve both issues 1 and 2 against the Appellants.

Next is the consideration of issue number 3 which is
“Whether or not the trial Court was right in holding that the suit of the Appellants was an abuse of Court process”

The fact of this case have

being stated somewhere in this judgment. It is clear and unambiguous. The Appellant has pursued his acclaimed cause of action in all the hierarchy of Courts of record i.e., the Federal High Court, the Court of Appeal and the highest Court of this country (Supreme Court). In all his travail, he was ruled against. He had his matter struck out or dismissed. In fact at the Supreme Court, his appeal was dismissed consequent upon the withdrawal of the appeal by the Appellant. After the sojourn by the Appellant he now came to institute suit No. FHC/ABJ/CS/509/2018 seeking for the orders therein sought herein before reproduced, and unmindful of the subsisting decision in suit number FHC/ABJ/CS/1505/2019 leading to this appeal wherein he urged the trial Court to set aside the consent judgment in suit No. FHC/ABJ/CS/509/2018. The learned trial judge in his finding has this to say on this issue, see page 990 of the Record.
“By the doctrine of stare decisis, I am bound by the decision of Supreme Court and hold that the Local Government Area Congress declared on the 5th and 12th of May, 2018 is a pre-election matter. The suit sought to set aside is a decision

declared in a pre-election matter setting aside the consent judgment will clearly mean that the pre-election matter have to be determined one way or the other. This clearly is not the intention of the drafters of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). All pre-election matter must be commenced within a time frame and determined within a time frame. Anything seen to be done outside the said time frame shall be a nullity. Moreso the setting aside the said consent judgment will mean that parties have to come before the Court again to determine their respective right… I have equally examined preliminary objection of learned Counsel to the 4th and 5th Defendants in this suit and I totally agree with him and hold that the present suit is an abuse of Court process… In the circumstance, I hold that this suit is an abuse of Court process and is accordingly dismiss. I so hold.”

where Mohammed JSC on what constitutes abuse of Court process said thus:
“The employment or use of judicial process is only regarded generally as an abuse when a party improperly uses the issue of judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice”
See also the cases of SARAKI V KOTOYE (1992) 9 NWLR (Pt. 264) 156 at 188, NNANA V NWANEBE (1991) 2 NELR (Pt. 172) 181, OLUTINRIN V AGAKA (1998) 6 NWLR (Pt. 554) 366, AFRICAN CONTINENTAL BANK PLC V DAMIAN IKECHUKWU NWAIGWE & 5 ORS (2011) LPELR – 208, INYANG EDET V THE STATE (1988) LPELR- 1008.
Having said the foregoing, the Appellant has his hand soiled by multiplicity of actions and as I said before somewhere in this judgment that the Appellant pursued the same cause of action in both suit Numbers No. FHC/ABJ/CS/1505/2019, FHC/ABJ/CS/509/2018, Appeals No. CA/B/248/2019, CA/B/197/2019, CA/B/196/2019 and finally at the Supreme Court where he withdrew his appeal and same was dismissed. The foregoing are sufficient to justify multiplicity of action which constitutes an abuse of Court process. Again the trial

Court reasoning that the matter being a pre-election matter and that it is time bound and that if by any means the judgment is set aside, it will open the flood gate of litigation on issues that are time bound. For the forgoing, therefore, this issue also is resolved against the Appellant and in my conclusion the learned trial judge was right in concluding that the suit of the Appellant constitutes an abuse of Court process.

ISSUE 4
Whether or not the judicial powers of a Court to set aside it own decision made without jurisdiction is wrong and consequently amounts to a review of its decision?

The contention of the Appellant here is purely an issue of law. In the case of ALBERT AFEGBAI V ATTORNEY GENERAL EDO STATE (2001) 14 NWLR (Pt. 733) 425. Karibi Whyte JSC as he then was said thus on setting aside of consent judgment.
On the meaning of consent judgment his lordship said:
“There is a consent judgment where parties to an action in Court have fashioned out an agreement as to how to settle their dispute out of Court and apply to the Court to give judgment on the terms they have agreed upon, such judgment when given is called

judgment by consent and served as a final determination of the dispute between the parties”
See also N.W.R.D. V JAIYESIMI (1963) 1 ALLNLR 215, WOLUCHEM V WOKOMA (1974) 3 SC 135.
On grounds by which consent judgment will be set aside, his lordship said thus:
“A consent judgment will be set aside on any ground which may invalidate an agreement on which it is founded would be rescinded. When therefore, a consent judgment is sought to be set aside on the ground of fraudulent misrepresentation, the same principle apply as would apply where the action one for rescission of a contract. In HUDDERSFIELD BANKING CO. LTD V HENRY LISTER & SON, LTD (1895-9) ALLER REP. 868. It was held that a consent order made by the Court to give effect to the compromise of a legal claim by the parties concerned can be set aside not only on the ground of fraud, but for any reason which will afford a ground for setting aside the agreement on which the order was made, for example, on the ground of a common mistake regarding a material fact. In that case Lindley, ECJ said “The only thing, to my mind, to be done on this point of setting aside a consent

judgment is to see whether the agreement upon which it was based can be invalidated or not. If the agreement cannot be invalidated, the consent order is good. If the agreement can be invalidated, the consent order is bad”
A careful reading of the complaint of the Appellant is that the Chairman of the party “APC” did not sign the agreement but rather was signed by the Counsel. They try to justify this by acting on internal memo from office of the Chairman stating that he did not give the authority to sign the agreement. In the same vein the said chairman is a Respondent in the suit by the Appellant and he vehemently and vigorously contested the suit by the Appellant by filing processes in opposition. Not this alone he is also represented in this appeal and also filed processes in opposing the plight of the Appellant. In my humble view it can be said without any doubt that he has ratified the action taken by his team of legal practitioners. That being as it may, there is nothing to show having regard to the foregoing that the said National Chairman of the APC did not ratify the action taken on his behalf by his Counsel. It is my ardent

view that both the terms of agreement to settle out of Court and in entering consent judgment in Court are to the knowledge of the said Chairman having not raise any issue in Court on the said agreement. See ADEWUNMI V PLASTEX LTD (1986) 3 NWLR (Pt. 32) 767, NGWU V ONUIGBO (1999) 13 NWLR (Pt. 636) 512.
In addition to the foregoing the Appellant has not justify any fulfillment of any condition precedent for the setting aside of a consent judgment. See MALLAM SAIDU AMORI V YAKUBU IYANDA (2007) LPELR – 8747. Neither was there any proof of fraud, misrepresentation nor failure to disclose any material fact which there was obligation to disclose.

Further to these, it is on record that the Court in his judgment concluded that the suit of Appellant seeking to set aside the judgment constitutes an abuse of Court process and dismissed same. Where a suit is decreed to constitute an abuse of Court process, the Plaintiff in that suit cannot have any benefit accruing to him because he cannot place something upon nothing. Again I resolve this issue against the Appellants.

Having come to this stage, I am left with no other option than to conclude that this

appeal is meritless and ought to be dismissed. Accordingly, I dismiss the appeal in its entirety.

The judgment of the Federal High Court Abuja Judicial Division in Suit No. FHC/ABJ/CS/1505/2019 delivered on 10th day of June, 2020 Coram Hon. Justice A. I. Chikere is hereby affirmed.

I award a cost of N100,000.00 jointly in favour of the 1st and 2nd Respondents and N100,000.00 also to the 3rd – 5th Respondents jointly.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother MUDASHIRU NASIRU ONIYANGI, JCA., and I agree totally with the reasoning and conclusion contained therein. I have nothing useful to add by way of contribution.

Accordingly, I too, dismiss the appeal and abide by the other orders made in the lead judgment.

BITRUS GYARAZAMA SANGA, J.C.A.: I have read a draft of the Judgment just delivered by my learned brother, M.N. Oniyangi, JCA.

I agree with and adopt the finding in the lead Judgment that this appeal lacks merit and I join my brother in dismissing same. I abide by the order as to costs.

Appearances:

E. DORMBILIS, ESQ., with him, BRIGHT J. UCHE For Appellant(s)

CHIEF NELSON O. IMOH, ESQ., with him, COLLINS MARSHAL for the 1st and 2nd Respondents.

B. K. ABU, ESQ., with him, A. O. IBRAHIM MISS. for the 2nd to 5th Respondents.

WEIDY KUKU MRS. for the 6th Respondent For Respondent(s)