MOHAMMED v. OKAFOR & ORS
(2022)LCN/17124(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, July 22, 2022
CA/ABJ/CV/702/2022
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Between
COMRADE SALISU MOHAMMED APPELANT(S)
And
1. CHIEF CALLISTUS OKAFOR 2. BARRISTER JULIUS ABURE 3. UMAR FAROUK 4. BARR. AKINGBADE SAMUEL OYELAKIN (FOR THEMSELVES AND AS REPRESENTING PERSONS WRONGFULLY AND UNLAWFULLY PARADING THEMSELVES AS MEMBERS OF THE NATIONAL WORKING COMMITTEE OF THE LABOUR PARTY) 5. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 6. LABOUR PARTY 7. COMRADE LAWSON OSAGIE 8. COMRADE ISA AREMU 9. COMRADE BABAAYE 10. COMRADE IKPE ETOKUDO 11. COMRADE SYLVESTER EJIOFOR 12. COMRADE LUCY OFFIONG 13. NIGERIA LABOUR CONGRESS (NLC) 14. HAJIYA SALAMATU ALIYU RESPONDENT
RATIO
THE POSITON OF LAW WHERE A PARTY FAILS TO CHALLANGE THE ARGUEMENTS MADE BY THE OTHER PARTY
In law, the failure of the 1st Respondent to make any counter submission to the challenge to the competence of the 1st Respondent’s Suit before the lower Court simply amounts, in my view, to a concession by the 1st Respondent that it is indeed true that his Suit before the lower Court was incompetent as urged upon us by the Appellant. This is so because in law, where one party is duly served with the arguments of the other party and he fails or neglects or refuses to respond to the said arguments as proffered by the other party, it would be taken that he has conceded to the arguments of the other party. See Dr. Arthur Nwankwo & Ors V. Alhaji Uniaru Yar’Adua & Ors (2010) 12 NWLR (Pt. 1209) 518, where the Supreme Court per Onnoghen JSC, (as he then was but later CJN) had held inter alia thus:
“It is settled law that where an opponent fails or neglects to counter any argument or issue validly raised in the brief of argument or during oral presentation, the issue is not so contested and is deemed conceded by the defaulting party.”
See Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR-45528(CA) AT pp. 99 – 102, per Sir Biobele Abraham Georgewill JCA, Ahmed V. Ahmed (2013) 41 WRN 1, Dairo V. Aderinoye (2013) 50 WRN 111.
Be that as it may, I am aware that in law where an issue raised by one party is not countered by the other party, it does not automatically follow that such arguments, though conceded, are to be taken hook, line and sinker by the Court. Thus, the failure of one party to counter the arguments of the other party alone does not ipso facto, and without more, confer merit on the arguments of the party as the Court is still under a duty to consider the arguments on their own merit. See Adah V. NYSC (2004) 13 NWLR (Pt. 891) 639. See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR-45528(CA) AT pp. 99 -102, per Sir Biobele Abraham Georgewill JCA, Tanko V. UBA Plc. (2010) 7 NWLR (Pt. 1221) 80, Obiuweubi V. CBN (2011) 17 NWLR (Pt. 1247) 80, Stowe V. Benstowe (2012) 17 NWLR (Pt. 1306) 450, Elelu Habeeb V. AG. Fed. (2012) 13 NWLR (Pt. 1318) 423, Agi V. Access Bank Plc (2014) 9 NWLR (Pt. 1411) 121.
It is therefore, only in deference to the above position of the law and the overriding need to do substantial justice that I intend to proceed to consider and resolve the challenge to the competence of the 1st Respondent’s Suit as canvassed under issue one for determination in the Appellant’s brief. PER GEORGEWILL, J.C.A.
THE DEFINITION OF PRE-ELECTION MATTERS
Now, by Section 285 (14) (a) – (c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), it is provided inter alia as follows:
“For the purpose of this Section, “pre-election matter” means any suit by: 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 of the conduct of party primaries has not been complied with by a Political Party in respect of the selection or nomination of candidates for an election; An aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any other 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 or nomination of candidates and participation in an election; and; A Political Party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidates from participating in an election or a complaint that the provisions of the Electoral Act or 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.” PER GEORGEWILL, J.C.A.
FACTORS TO DETERMINE WHAT A PRE-ELECTION MATTER IS
In APC V. Moses (2021) All NWLR (Pt. 12) p. 495 AT pp. 542 – 543, the purport and effect of the what would amount to a pre-election matter as to confer on the lower Court the jurisdiction to intervene were exhaustively considered by the Supreme Court. The Apex Court had per Jauro JSC, stated inter alia thus:
“…In determining what a pre-election matter is, recourse must be made to the statutory definition of the phrase “pre-election matter” as provided for under Section 285 (14) (a) – (c) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) … From the statutory definition of pre-election provided above, I am persuaded to disagree with counsel for the Respondents that the action culminating into the instant appeal is a pre-election matter…”
Thus, by Section 285(14) (a) – (c) of the Constitution of Nigeria 1999 (as amended) justiciability is conferred only on pre-election matters preparatory to an election and therefore, generally, it arises from Political party primaries which must be conducted in line with the party’s Constitution and Guidelines. So, is an election or convention solely for the purpose of election and or appointment of leaders of the 6th Respondent, at whatever level of hierarchy of the said political party or is the alleged breach of a judgment of the lower Court, entered whether by consent or otherwise, a pre-election matter or matter over which a fresh action as distinct from enforcement processes, can be regarded as justiciable in law? I think not! So, is an election or convention by whatever name so called by a Political party, such as the 6th Respondent to elect and or appoint or select its leaders and or officials, such as claimed by the 1st Respondent, merely an internal affair of a Political party and thus non – justiciable in law? I think so!
In law, issues arising from such exercise for the election and or selection or appointment of officials and leaders of a Political party is purely an intra – party dispute subject to the will of the majority rule of the Political party, which is simply a voluntary organization, and thus not justiciable in law. See Onuoha V. Okafor (1983) 14 NSCC 494. See also APC V. Moses (2021) All NWLR (Pt. 12) 595, Eyitayo Jegede V. INEC & Ors (2021) LPELR – 55481 (SC), Hon. Olayide Adewale Akinremi & Anor V. Muttaka Bala Suleiman & 17,908 Ors (2022) LPELR – 56903 (CA) per Sir Biobele Abraham Georgewill JCA. PER GEORGEWILL, J.C.A.
THE POSITION OF LAW ON ABUSE OF COURT PROCESS
In law, an abuse of Court process simply put, and for lack of a precise definition, denotes the improper use of the process of Court to achieve unlawful ends or the employment of the judicial process to the annoyance or irritation or injury of the person of another and thus it can safely pass as a doctrine of law without any precise definition. See Dana Airlines Limited V. Mrs. Grace Eventus Mbong & Ors (2017) LPELR- 43052 (CA) per Sir Biobele Abraham Georgewill JCA. See also Dana Airlines Ltd V. Yusuf & Ors (2017) LPELR 43051 (CA) per Sir Biobele Abraham Georgewill JCA.
However, some guidelines were laid down by the apex Court in Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156 AT p. 188, where the Supreme Court had opined inter alia thus:
“The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions…It is recognized that the abuse of the process may be in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice.”
See also Ziklagsis Network Ltd V. Adebiyi & Ors (2017) LPELR- 42899 (CA), per Sir Biobele Abraham Georgewill JCA, Dalhatu V. Turaki (2003) 15 NWLR (Pt. 843) 310, Mailantarki V. Tongo & Ors (2018) 6 NWLR (Pt. 1614) 69. PER GEORGEWILL, J.C.A.
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Federal High Court, Abuja Division, Coram: I. E. Ekwo J, in Suit No. FHC/ABJ/CS/1636/2021: Chief Callistus Okafor V. Barrister Julius Abure & Ors delivered on 16/6/2022, in which the lower Court ordered the Appellant to file his Counter-Affidavit to the 1st Respondent’s Originating Summons within 7 days from 16/6/2022 and adjourned the Suit to 30/6/2022 for hearing.
The Appellant, who was the 6th Defendant before the lower Court, was peeved by the said ruling and had promptly appealed against it vide his Notice of Appeal filed on 24/6/2022 on six grounds of appeal. See pages 445 – 455 of the Record of Appeal. The Record of Appeal was duly compiled and transmitted to this Court on 30/6/2022. The Appellant and the 1st Respondent filed and exchanged their respective appellate briefs. The 2nd – 14th Respondents did not file any brief. The Appeal was heard on 20/7/2022, where learned counsel for the Appellant and the 1st Respondent adopted their respective briefs as their arguments in this Appeal. The Appellant was represented by Abdulaziz Ibrahim, Esq., appearing with Mukhtar Bunza, Esq., The 1st Respondent was represented by C. J. Edemeka, Esq., appearing with Victor Okwudiri Esq. The 2nd – 4th Respondents were represented by Alex Ejesieme SAN, appearing with C. S. Uzodike, Esq., and E. C. Ezeh, Esq. The 6th Respondent was represented by Kehinde Edun, Esq. The 7th – 14th Respondents were represented by Marshall Abubakar, Esq. The 5th Respondent, though duly served with hearing notice on 19/7/2022, did not participate at the hearing of this appeal.
By an Originating Summons filed before the lower Court, the 1st Respondent as Claimant sought against the Appellant and the 2nd – 14th Respondents as Defendants the determination of the following question, namely:
1. Whether the purported National Executive Council (NEC) meeting of the defendant held on or about the 9th day of October, 2018 at APTEC Hotel, Shiroro road, Minna, Niger State of Nigeria was in brazen disregard of the consent judgment of this Honourable Court delivered on the 20th day of March, 2018 on the one hand and in contravention of the Constitution of the 5th Defendant and therefore all decisions taken therein liable to be set aside.
2. Whether the purported National Convention of the 5th defendant held on the 10th day of June, 2019 was a brazen violation of a valid consent judgment of this Court on the one hand and a contravention of the constitution of the 5th defendant and therefore all decisions taken therein liable to be set aside
3. Whether the purported National Executive Council (NEC) meeting of the 5th defendant held on or about the 29th March, 2021 in Benin City, Edo State of Nigeria was in contravention of both the consent judgment of this Court and the Constitution of the 5th Defendant and therefore all decisions taken therein liable to be set aside.
Upon the answer to the above questions in the affirmative, the 1st Respondent claimed against the Appellant and the 2nd – 14th Respondents the following reliefs, namely:
1. A Declaration that the purported National Executive Council (NEC) meeting of the 5th Defendant held on or about the 9/10/2018 at ARTEC Hotel, Shiroro Road, Minna, Niger State was in brazen disregard of the consent judgment of this Court delivered on the 20/3/2018 on the one hand and in contravention of the Constitution of the 5th defendant and therefore decisions taken therein liable to be set aside.
2. A Declaration that the purported Convention of the 5th Defendant held on the 10/6/2019 was a brazen violation of valid consent judgment of the Court on the one hand and a contravention of the constitution of the Defendant and therefore all decisions taken thereof liable to be set aside.
3. A Declaration that the purported National Executive Council (NEC) meeting of the 5th Defendant held on or about the 29/3/2021 in Benin City, Edo state Nigeria was in contravention of both the consent judgment of this Court and the constitution of the 5th Defendant and therefore all decisions reached therein liable to be set aside.
4. An Order of Perpetual injunction restraining the 1st, 2nd and 3rd defendants and all other officers and/or appointees of the 5th defendant who were appointed/elected at the purported National Executive Council meeting of the 5th Defendant held in Benin city (in violation of the consent judgment of this Court and in contravention of the Constitution of the 5th defendant) from parading and continuing to hold and parade themselves either individually or collectively as the Chairman, Secretary or National officers or members of the National Executive Committee or National Working Committee of the 5th Defendant.
5. An Order restraining the 4th Defendant from according or continuing to accord any form of recognition to the 1st, 2nd and 3rd Defendants including any or all of the so called or purported National officers, the members of both the National Executive committee and National Working Committee of the 5th Defendant elected or appointed at the purported National working Committee of the 5th Defendant held in Benin City on the 29/3/2021 in violation of the consent judgment of this Court and in contravention of the 2019 Constitution of the 5th Defendant.
6. An Order appointing the Plaintiff, being the duly recognized and validly appointed deputy National Chairman as the Acting National Chairman of the 5th Defendant in the absence of a National Chairman.
7. An Order mandating the Plaintiff upon being appointed as the Acting National Chairman to give leadership and direction to the 5th Defendant particularly and including the converting and presiding over the meeting of the National, Convention, National Executive Council and National Working Committee in collaboration with the 5th – 14th Defendants. See pages 3 – 76 of the Record of Appeal.
BRIEF STATEMENT OF FACTS
The 1st Respondent had as Claimant instituted an action by means of an Originating Summons claiming several reliefs ordering on the leadership of the 6th Respondent, Labour Party, at the National level and had predicated his right to these reliefs on an earlier Consent Judgment of the lower Court delivered on the 20/3/2018 per Gabriel Kolawole J, (as he then was), in Suit No FHC/ABJ/CS/866/2018; Labour Party & Ors v Comrade Salisu Mohammed & Ors. It would appear that the 1st Respondent was unable to immediately serve the Originating Summons on the 6th Respondent and had sought and obtained the leave of the lower Court to do so by means of substituted service on the 6th Respondent and also on some of the other Respondents. See pages 148 – 154, 438 – 441, 434 – 438 and 442 – 444 of the Record of Appeal.
The parties were yet to file and exchange their processes before the lower Court, when the matter came up before the lower Court on 16/6/2022. The Appellant had requested for 30 days within which to file his Counter-Affidavit to the 1st Respondent’s Originating Summons, but the lower Court declined and rather directed and or ordered the Appellant to file his Counter-Affidavit to the Originating Summons of the 1st Respondent within 7 days from the 16/6/2022 and adjourned the Suit to 30/6/2022 for hearing, hence this appeal. See pages 434 – 438 and 445 – 455 of the Record of Appeal.
ISSUES FOR DETERMINATION
In the Appellant’s brief, four issues were distilled as arising for determination from the six grounds of appeal, namely:
1. Whether having regards to the provisions of Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the subject matter of the 1st Respondent’s suit which borders on intra-party affairs is within the jurisdiction of the lower Court and/or justiciable? (Distilled from Grounds 4 and 6)
2. Whether in view of the provisions of Order 7 Rule 1 and Order 13 Rule 49 of the Federal High Court (Civil Procedure) Rules 2019, the lower Court has the powers to abridge time within which the Appellant is entitled to file his Counter-Affidavit to the 1st Respondent’s Originating Summons filed on 23/12/2021? (Distilled from Grounds 1 and 2)
3. Whether the lower Court has the vires to interpret the consent judgment in Suit No. FHC/ABJ/CS/866/2018 – Labour Party & Ors V Comrade Salisu Mohammed & Ors? (Distilled from Ground 5 of the notice of appeal).
4. Whether in view of the provisions of Sections 97, 98 and 99 of the Sheriffs & Civil Process Act, 2004 and Order 3 Rules 19 & 20, and Order 6 Rule 2 of the Federal High Court (Civil Procedure) Rules 2019, the 1st Respondent’s suit is not incompetent and ought to be struck out? (Distilled from Ground 3 of the notice of appeal).
In the 1st Respondent’s brief, three issues were distilled as arising for determination in this appeal, namely:
1. Whether the lower Court was wrong in abridging the time within which the Appellant and the 2nd – 14th Respondents herein were to file their respective responses to the Originating Summons at the lower Court, and in setting down the Originating Summons for hearing on the 30/6/2022, and thereby occasioned a miscarriage of justice? (Distilled from Grounds 1 and 2)
2. Whether the lower Court lacked the jurisdiction to entertain the 1st Respondent’s Originating Summons by virtue of the mode of service of the said Originating Summons and other processes in the Suit on the Appellant herein? (Distilled from Ground 3)
3. Whether the lower Court erred in assuming jurisdiction to set down the Originating Summons for hearing, especially in the absence of any Notice of Preliminary Objection by the Appellant challenging the jurisdiction of the lower Court to entertain the Suit? (Distilled from Grounds 4, 5 and 6)
I have taken time to consider the reliefs claimed by the 1st Respondent and the Affidavit in support of the Originating Summons. I have also reviewed the facts and circumstances of the proceedings before the lower Court on 16/6/2022. I have further considered the submissions of learned counsel to the parties in their respective briefs in the light of both the claims of the 1st Respondent and the order or directive of the lower Court made on 16/6/2022 and appealed against by the Appellant. I am of the view that the proper issues arising for determination in this appeal are the four issues as distilled in the Appellant’s brief, a consideration of which, in my view, would invariably involve a consideration of the three issues as distilled in the 1st Respondent’s brief. I shall consider the issues for determination ad seriatim, commencing with issue one for determination predicated on the competence or otherwise of the 1st Respondent’s Suit, and thereafter I shall proceed, depending on the resolution of issue one for determination and if need be, to consider issues two, three and four.
ISSUE ONE
Whether having regards to the provisions of Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the subject matter of the 1st Respondent’s suit which borders on intra party affairs is within the jurisdiction of the lower Court and/or justiciable? (Distilled from Grounds 4 and 6)
APPELLANT’S COUNSEL SUBMISSIONS
In his submissions on issue one, which I have taken time to review in its entirety, learned counsel for the Appellant had submitted inter alia that jurisdiction is fundamental to adjudication and a defect in competence is fatal to adjudication and contended that in determining whether or not a Court has jurisdiction to entertain a cause or matter, it is the Plaintiff’s claim or reliefs as endorsed in the Writ of Summons or Originating Summons that will be considered and urged the Court to hold that the claim of the 1st Respondent bordering on the alleged action of the 2nd – 4th Respondents to have convened an alleged wrongful convention of the 6th Respondent in purported violation of a consent judgement and Constitution of the 6th Respondent, after which they convened a wrongful National Executive Council meeting wherein the 2nd Respondent was purportedly wrongfully declared as the National Chairman of the 6th Respondent, when the 1st Respondent was the rightful person to assume the position of Acting Chairman of the 6th Respondent are all issues squarely within the internal affairs of the 6th Respondent and therefore, not justiciable and thereby rendered the 1st Respondent’s Suit incompetent and to allow the appeal and strike out the 1st Respondent’s Suit for being incompetent, and thereby depriving the lower Court of its jurisdiction. Counsel referred to Section 251(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and relied on Federal Polytechnic, Offa V. UBA Plc (2014) ALL FWLR (Pt. 737) 739 AT p. 771, Shell Nigeria Ltd V. Dec Oil & Gas Ltd (2011) FWLR (Pt. 580) 1350 AT P. 1365, 7UP Bottling Co. Ltd V. Abiola & Sons Bottling Co. Ltd (2001) FWLR (Pt. 70)1611 AT p. 1648, Saleh V. Monguno (2006) FWLR (Pt. 332) 1411, Madukolu V. Nkemdilim (1962) 2 SCNLR 341, Duru V. FRN (2019) All FWLR (Pt. 985) 404 AT p. 430, Tukur V. Government Of Gongola State (1989) 3 NSCC 225, Sen. Yakubu Lado & Ors V. Congress For Progressive Change & Ors (2011) LPELR – 8254 (SC), Statoil (Nig) Ltd V. Inducon (Nig) Ltd (2021) 7 NWLR (Pt. 1774), CGC Nig Ltd V. Asaagbara (2001) 1 N.W.L.R (Pt. 693) 159.
It was also submitted that there is no law which empowers the lower Court adjudicate over the affairs of political parties, except for pre-election matters, and the claims of the 1st Respondent do not fall within any of the ambit of the provision of the law providing for intervention by the Courts and contended in law any claim, like the ones being claimed by the 1st Respondent, that borders on the internal and domestic affairs of a Political party are non- justiciable and urged the Court to hold that the jurisdiction of the lower Court was thereby ousted in matters dealing with internal affairs or resolution of a Political party regarding nomination or leadership of that Political party and to allow the appeal and strike out the 1st Respondent’s Suit for being incompetent. Counsel referred to Section 285 (14) of the Constitution of the Federal Republic of Nigeria, 1999 as (amended), Sections 8(14) and 29(5) of the Electoral Act 2022, and relied on PDP V. KSIEC (2006) 3 NWLR (Pt. 968) 565, Onuoha V. Okafor (1983) 2 SCNLR 244, Agi V. PDP (2017) 17 NWLR (Pt. 1595) 386, Ufomba V. INEC (2017) 13 NWLR (Pt. 1582) 181, Chief Jude Okeke V. APGA & Ors (SC/CV/686/2021), APC V. Moses (2021) 12 NWLR (Pt 1796) 278, Ufomba V. I.N.E.C (2017) 13 N.W.L.R (Pt. 1582) 181.
1ST RESPONDENT’S COUNSEL SUBMISSIONS
In his submissions on issue three, which I have taken time to review in its entirety, learned counsel for the 1st Respondent had submitted inter alia that all the issues raised by the Appellant under his issue three for determination are issues that go to the substance of the 1st Respondent’s suit, and, as such, are not worthy of an interlocutory appeal as the instant one, and contended that the Appellant having not filed any preliminary objection before the lower Court to ventilate their reservations about the jurisdiction of the lower Court to entertain the Suit, cannot be heard on these issues of jurisdiction in the absence of a Notice of Preliminary Objection and urged the Court to hold that even if the Appellant had filed a Notice of Preliminary Objection challenging the jurisdiction of the lower Court to entertain the 1st Respondent’s Suit, by the rules of the lower such preliminary objection is to be heard alongside the substantive Suit and to dismiss the appeal for lacing in merit. Counsel referred to Order 29 of the Federal High Court (Civil Procedure) Rules 2019., and relied on Isah V. INEC (2016) 18 NWLR (Pt. 1544) 175 AT p. 215, Inakoju V. Adeleke (2007) 4 NWLR (Pt. 1025) 427 AT p. 684.
APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply submissions, which I have taken time to review in its entirety, learned counsel for the Appellant had submitted inter alia that since issue one deals with issues of jurisdiction, it can be raised at any stage of the proceedings and even for the first time on appeal as rightly done by the Appellant in this appeal and contended that learned counsel for the 1st Respondent failed to make any submission contrary to the incompetence of the 1st Respondent’s Suit and urged the Court to hold that the 1st Respondent is grossly incompetent and should be struck out to avoid embarking on mere nullity in the absence of jurisdiction. Counsel relied on Garba V. Mohammed (2017) All FWLR (PT. 867) 420, Petrojessica Enterprises Ltd & Anor V. Leventis Technical Company Ltd (1992) 5 NWLR (PT. 244) 675, Owoniboys Technical Services Ltd. V. John Holt Ltd (1991) 6 NWLR (PT. 199) 550, S.P.D.C N. L V. Ejebu (2013) ALL FWLR (Pt. 703) 2029 AT p. 2047.
RESOLUTION OF ISSUE ONE
My Lords, if I understood what the learned counsel for the 1st Respondent had said in the 1st Respondent’s brief under issue three in relation to the Appellant’s issue one, and I think I did understand him, his entire submission was that since the Appellant had not filed a Notice of Preliminary Objection before the lower Court, the issues of jurisdiction raised under issue one in this appeal are merely non-sequitur and should be discountenanced by this Court. He had contended further that in law under the rules of the lower Court even if the Appellant had filed a Notice of Preliminary Objection, it would be heard together with the 1st Respondents’ Suit, and therefore, in his view, these issues are premature at this stage of this interlocutory appeal.
In law, jurisdiction is the authority a Court has to entertain an action or matter brought before it. It is thus fundamental to adjudication and without it a Court would lack the power to entertain a Suit over which it had not the requisite jurisdiction, since to do so would amount to a nullity, no matter how well conducted the proceedings might be or how sound the resultant judgment or decision might be. It is the claim of the Claimant that ordinarily determines the jurisdiction of the Court and therefore, once the claim of a Claimant is either outside the subject matter or territorial or other legal jurisdiction of the Court, it is incompetent and must be put or brought to an end. See Madukolu V Nkemdilim (1962) 1 All NLR 58 AT p. 595. See also Western Steel Works Ltd. V. Iron & Steel Workers Union (1987) 1NWLR (Pt. 49) 284, Andrew V. Oshoakpemhe & Ors (2021) LPELR- 53228 (CA) per Sir Biobele Abraham Georgewill JCA.
In the instant appeal, the Appellant’s issue one for determination, which was adopted as the issue one for determination by this Court, is one raising the issue of jurisdiction, which in law is both radical and fundamental to adjudication by any Court of law. Thus, it can be raised any stage of the proceedings and indeed, even in any manner, including viva voce. The issue of jurisdiction is far too important to be limited to or confined to or circumscribed either by proceedings before the lower Court or even to grounds of appeal, since it can even be raised suo motu by the Court. So, for instance if this Court perceives an appeal before it is incompetent, must it refrain from raising it because it does not emanate from any of the Appellant’s ground of appeal or that it has not been raised before the lower Court? In other words, if this Court raises the issue of jurisdiction on the face of the processes and or claims filed before the lower Court but there is no ground of appeal or record of the proceedings of the lower Court to predicate it upon, would such an issue be considered incompetent? I think not!
I hold therefore, issue one for determination being an issue of jurisdiction, and arising from Ground 4 of the Notice of Appeal, and questioning the issue of both the competence of the 1st Respondent’s Suit and the jurisdiction of the lower Court, having been validly raised in this appeal, it must be determined by this Court. See Major Concept Ltd & Anor V. Eze (2020) LPELR – 50548 (CA). See also Agricultural Development Corporation V. Okedi (2004) 1 1 NWLR (Pt. 884) 369 AT pp. 379 – 380.
In the circumstances therefore, but very regrettably, the learned counsel for the 1st Respondent had failed and or neglected to offer any response to the issue of jurisdiction raised by the Appellant. In law, the failure of the 1st Respondent to make any counter submission to the challenge to the competence of the 1st Respondent’s Suit before the lower Court simply amounts, in my view, to a concession by the 1st Respondent that it is indeed true that his Suit before the lower Court was incompetent as urged upon us by the Appellant. This is so because in law, where one party is duly served with the arguments of the other party and he fails or neglects or refuses to respond to the said arguments as proffered by the other party, it would be taken that he has conceded to the arguments of the other party. See Dr. Arthur Nwankwo & Ors V. Alhaji Uniaru Yar’Adua & Ors (2010) 12 NWLR (Pt. 1209) 518, where the Supreme Court per Onnoghen JSC, (as he then was but later CJN) had held inter alia thus:
“It is settled law that where an opponent fails or neglects to counter any argument or issue validly raised in the brief of argument or during oral presentation, the issue is not so contested and is deemed conceded by the defaulting party.”
See Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR-45528(CA) AT pp. 99 – 102, per Sir Biobele Abraham Georgewill JCA, Ahmed V. Ahmed (2013) 41 WRN 1, Dairo V. Aderinoye (2013) 50 WRN 111.
Be that as it may, I am aware that in law where an issue raised by one party is not countered by the other party, it does not automatically follow that such arguments, though conceded, are to be taken hook, line and sinker by the Court. Thus, the failure of one party to counter the arguments of the other party alone does not ipso facto, and without more, confer merit on the arguments of the party as the Court is still under a duty to consider the arguments on their own merit. See Adah V. NYSC (2004) 13 NWLR (Pt. 891) 639. See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR-45528(CA) AT pp. 99 -102, per Sir Biobele Abraham Georgewill JCA, Tanko V. UBA Plc. (2010) 7 NWLR (Pt. 1221) 80, Obiuweubi V. CBN (2011) 17 NWLR (Pt. 1247) 80, Stowe V. Benstowe (2012) 17 NWLR (Pt. 1306) 450, Elelu Habeeb V. AG. Fed. (2012) 13 NWLR (Pt. 1318) 423, Agi V. Access Bank Plc (2014) 9 NWLR (Pt. 1411) 121.
It is therefore, only in deference to the above position of the law and the overriding need to do substantial justice that I intend to proceed to consider and resolve the challenge to the competence of the 1st Respondent’s Suit as canvassed under issue one for determination in the Appellant’s brief.
Now, by Section 285 (14) (a) – (c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), it is provided inter alia as follows:
“For the purpose of this Section, “pre-election matter” means any suit by: 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 of the conduct of party primaries has not been complied with by a Political Party in respect of the selection or nomination of candidates for an election; An aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any other 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 or nomination of candidates and participation in an election; and; A Political Party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidates from participating in an election or a complaint that the provisions of the Electoral Act or 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.”
It appears to me, and I so hold, the claim of the 1st Respondent bordering on the action of the 2nd – 4th Respondents to have convened an alleged wrongful convention of the 6th Respondent in violation of a consent judgment and the Constitution of the 6th Respondent, and further the claim that they convened a wrongful National Executive Council meeting wherein the 2nd Respondent was purportedly wrongfully declared as the National Chairman of the 6th Respondent, when the 1st Respondent was the rightful person to assume the position of Acting Chairman of the 6th Respondent, are all issues squarely within the internal affairs of the 6th Respondent. These issues are therefore, clearly not justiciable.
My Lords, I have skimmed and scanned through the provision of Section 285 (14) (a) – (c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the provisions of Sections 8(14) and 29(5) of the Electoral Act 2022 as well as the state of decided authorities on this issue to see if the claims of the 1st Respondent fall within the jurisdictional competence of the lower Court by virtue of any of these statutory provisions, or indeed any other law, and I find that they are clearly outside the jurisdictional competence and remit of the lower Court to validly adjudicate upon.
The claim of the 1st Respondent from his own showing and as endorsed by him on his Originating Summons is clearly one involving the internal affairs of the 6th Respondent, Labour Party, a registered political party in Nigeria. The claims do not at all fall within any of the ambit of the provision of the law providing for intervention by the Courts. The claims border on the internal and domestic affairs of the 6th Respondent, a political party, and are therefore, non-justiciable. They are thus, incompetent and rendered the 1st Respondent’s Suit utterly incompetent and thereby robbed the lower Court of any jurisdiction to hear and determine the 1st Respondent’s Suit. In law, neither are the internal affairs nor decisions of a political party, regarding strictly, the appointment or even election of their leadership the business of the Courts.
In APC V. Moses (2021) All NWLR (Pt. 12) p. 495 AT pp. 542 – 543, the purport and effect of the what would amount to a pre-election matter as to confer on the lower Court the jurisdiction to intervene were exhaustively considered by the Supreme Court. The Apex Court had per Jauro JSC, stated inter alia thus:
“…In determining what a pre-election matter is, recourse must be made to the statutory definition of the phrase “pre-election matter” as provided for under Section 285 (14) (a) – (c) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) … From the statutory definition of pre-election provided above, I am persuaded to disagree with counsel for the Respondents that the action culminating into the instant appeal is a pre-election matter…”
Thus, by Section 285(14) (a) – (c) of the Constitution of Nigeria 1999 (as amended) justiciability is conferred only on pre-election matters preparatory to an election and therefore, generally, it arises from Political party primaries which must be conducted in line with the party’s Constitution and Guidelines. So, is an election or convention solely for the purpose of election and or appointment of leaders of the 6th Respondent, at whatever level of hierarchy of the said political party or is the alleged breach of a judgment of the lower Court, entered whether by consent or otherwise, a pre-election matter or matter over which a fresh action as distinct from enforcement processes, can be regarded as justiciable in law? I think not! So, is an election or convention by whatever name so called by a Political party, such as the 6th Respondent to elect and or appoint or select its leaders and or officials, such as claimed by the 1st Respondent, merely an internal affair of a Political party and thus non – justiciable in law? I think so!
In law, issues arising from such exercise for the election and or selection or appointment of officials and leaders of a Political party is purely an intra – party dispute subject to the will of the majority rule of the Political party, which is simply a voluntary organization, and thus not justiciable in law. See Onuoha V. Okafor (1983) 14 NSCC 494. See also APC V. Moses (2021) All NWLR (Pt. 12) 595, Eyitayo Jegede V. INEC & Ors (2021) LPELR – 55481 (SC), Hon. Olayide Adewale Akinremi & Anor V. Muttaka Bala Suleiman & 17,908 Ors (2022) LPELR – 56903 (CA) per Sir Biobele Abraham Georgewill JCA.
The complaint of the 1st Respondent as well as his claims are purely intra-party disputes based on the 6th Respondent’s own internal affair over which neither the lower Court nor even this Court has any jurisdiction whatsoever to meddle and interfere with how the Labour Party, the 6th Respondent, runs and manages its own internal affairs. See Onuoha V. Okafor (1983) 14 NSCC 494, where the Supreme Court had stated inter alia thus:
“A party is like a club, a voluntary association… Members join of their own free will… The party’s decision is final over its own affairs. Members of a Party would do well to understand and appreciate the finality of a party’s decision over its domestic or internal affairs.” See also Hon. Olayide Adewale Akinremi & Anor V. Muttaka Bala Suleiman & 17, 908 Ors (2022) LPELR 56903 (CA) per Sir Biobele Abraham Georgewill JCA, Ufomba V. INEC (2017) 13 NWLR (Pt. 1582) 175, Peoples Democratic Party V. Ogundipe (2018) LPELR – 43887, Terver Kakih V. People Democratic Party and Ors (2014) 15 NWLR (Pt. 1430) 374 AT pp. 413 – 414.
Interestingly, in as recent as February 2022, a case with similar facts in relation to leadership tussles in Political Parties, this time the Kano State Chapter of the APC, confronted this Court on the proper scope of justiciability or non – justiciability of internal affairs of a Political Party in Nigeria in Hon. Olayide Adewale Akinremi & Anor V. Muttaka Bala Suleiman & 17, 908 Ors (2022) LPELR – 56903 (CA).
Upon a thorough review of all the extant decisions of the Apex Court, we came to the conclusion, same as already earlier held in this judgment, that a claim bordering on the internal affairs of a Political Party, no matter how ingeniously crafted, is not justiciable. The law is far too settled on this and there does not seem to be any more room for rigmarole on it. See Hon. Olayide Adewale Akinremi & Anor V. Muttaka Bala Suleiman & 17, 908 Ors (2022) LPELR – 56903 (CA) per Sir Biobele Abraham Georgewill JCA.
Happily, the above judgment went on appeal to the Apex Court, and has since been affirmed by the Supreme Court. We neither have reason to depart from this our earlier decision nor the liberty to refuse to follow the several decisions of the Supreme Court on this issue, including the heart-warming affirming of our earlier judgment delivered earlier this year.
I have taken time to scrutinize the depositions, reliefs and the subject matter of the claims of the 1st Respondent as Claimant. It is very obvious to me that the claims as endorsed on the 1st Respondent’s suit are not for any reliefs bothering on any pre-election matters, but is clearly and squarely on the issue of leadership of the 6th Respondent, Labour Party, as to the entitlement of the 1st Respondent to be appointed as the Acting Chairman of the 6th Respondent as against the 1st Respondent, and therefore, non-justiciable and thus rendered the 1st Respondent’s Suit incompetent.
In the circumstances therefore, issues one for determination is hereby resolved in favour of the Appellant against the 1st Respondent.
Having therefore resolved issue one for determination in favor of the Appellant against the 1st Respondents, I hold firmly that the 1st Respondent’s Suit is incompetent and thus, liable to be struck out. In law, once the requisite jurisdiction is found to be lacking that is indeed the end of the matter. In AG. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552, the Supreme Court had per Kayode Eso JSC, (God bless his soul) put it so poetically thus:
“Without jurisdiction, the laborers that is the litigant and counsel on the one hand and the Court on the hand labor in vain.”
Having arrived at the inescapable conclusion that the 1st Respondent’s Suit is incompetent, the issue of the perennial battle for supremacy between ‘substantial justice’ and ‘technical justice’ reared up its head at once to play on the conscience of the Court; should we jettison and discountenance technicality bordering on incompetence of the 1st Respondent’s Suit and consider the other issues in this appeal on the merit or should we give effect to the settled principle of law that nothing worth anything can ever come out from an incompetent Suit? In African Songs Limited &Anor V. King Sunday Adeniyi Adegeye (2019) 2 NWLR (Pt. 1656) 335 AT p. 365 – 366, this Court had cause to consider the place of ‘substantial justice’ and ‘technical justice’ on the due administration of justice in this Country and had per Sir Biobele Abraham Georgewill JCA, opined inter alia thus:
“My Lords, while in today’s jurisprudence of ‘substantial justice’ the issue of ‘mere technicality’ no longer holds sway, yet it is truism that competence is the soul of adjudication. It is in this sense, the issue of competence can no longer in law truly be regarded as ‘mere technicality’ but rather be seen as substantial issue of law. In other words, while eschewing technicality for its sake, a Court can only exercise jurisdiction where all conditions precedent to the exercise of its powers have been fulfilled.”
I do not think I can improve on the statement of law I made above and thus, I cannot but bow to it. I fully subscribe to its truism and so it is with the 1st Respondent’s suit filed without competence. In law, once a Suit is found to be incompetent the proper order to make is one of striking it out. See NPA Plc. V. Lotus Plastics Ltd. & Anor (2005) 19 NWLR (Pt. 959) 258.
Consequently, the 1st Respondent’s Suit is hereby struck out for being incompetent.
Now, as an aside, having held firmly that the 1st Respondent’s Suit was in law grossly incompetent and thus liable to be set aside, I consider the attempt by the 1st Respondent to file an Originating Summons with the clear intendment of either enforcing and or interpreting the consent judgment of the lower Court, despite the several lawful means of enforcement of a judgment of the lower Court which does not include by yet another judgment of the lower Court, to be a clear abuse of the process of the lower Court, and which ought to be terminated by an order dismissing the 1st Respondent’s Suit for being an abuse of Court’s process. See Ganiyu V. Oshoakpemhe & Others (2021) LPELR -53222 (CA) per Sir Biobele Abraham Georgewill JCA.
In law, an abuse of Court process simply put, and for lack of a precise definition, denotes the improper use of the process of Court to achieve unlawful ends or the employment of the judicial process to the annoyance or irritation or injury of the person of another and thus it can safely pass as a doctrine of law without any precise definition. See Dana Airlines Limited V. Mrs. Grace Eventus Mbong & Ors (2017) LPELR- 43052 (CA) per Sir Biobele Abraham Georgewill JCA. See also Dana Airlines Ltd V. Yusuf & Ors (2017) LPELR 43051 (CA) per Sir Biobele Abraham Georgewill JCA.
However, some guidelines were laid down by the apex Court in Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156 AT p. 188, where the Supreme Court had opined inter alia thus:
“The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions…It is recognized that the abuse of the process may be in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice.”
See also Ziklagsis Network Ltd V. Adebiyi & Ors (2017) LPELR- 42899 (CA), per Sir Biobele Abraham Georgewill JCA, Dalhatu V. Turaki (2003) 15 NWLR (Pt. 843) 310, Mailantarki V. Tongo & Ors (2018) 6 NWLR (Pt. 1614) 69.
ISSUES TWO, THREE AND FOUR
My lords, I have duly considered the claims of the 1st Respondent and the entire proceedings of the lower Court on 16/6/2022 leading to the order appealed against by the Appellant. I have also taken time to review the submissions of the parties under issues two, three and four for determination. I have already held under issue one for determination that the Appellant’s Suit was incompetent and struck out same. In law, jurisdiction is the life wire and the very soul of every cause or matter before the Courts. A Court is therefore, competent only and only when all the conditions precedent to the exercise of the Court’s jurisdiction have been fulfilled. See Madukolu V. Nkemdilim (1962) All NLR 581. See also Petro Jessica Ltd V. Leventis Trading Co. Ltd (1992) 5 NWLR (Pt. 244) 693, Onuorah V. Kaduna PRC Ltd (2005) All FWLR (Pt. 256) 1.
Having therefore firmly held that the 1st Respondent’s Suit was grossly and irredeemably incompetent and thereby robbed the lower Court of its competence and jurisdiction, I consider issues two, three and four for determination dealing with the order of the lower Court as to whether it was valid or invalid as merely academic. Indeed, the Courts are loath to and do not saddle themselves with the consideration of matters which had become merely academic and therefore, of no utilitarian value to either of the parties. To embark on such exercise of jurisdiction of the Courts over matters which are no longer live would clearly amount to nothing but sheer waste of the very precious and, if I may say scarce, judicial time. See Charles Oke & Anor V. Dr. Rahman Mimiko & Ors(2013) All FWLR (Pt. 693) 1853. See also Oke V. Mimiko (No. 1) (2014) 1 NWLR (Pt. 1388) 225 AT pp. 254 – 255, Mbachu V. Anambra – Imo Rivers Basin Development Authority, Owerri (2006) All FWLR (Pt. 342) 1482 AT p 1497.
Thus, for a Court to continue to exercise its jurisdiction over matters pending before it, the matters must have in them issues which remain live for determination and of utilitarian value to one or more of the parties. See Uba Plc V. Dana Drugs Ltd (2018) LPELR – 44103 (CA), per Sir Biobele Abraham Georgewill JCA. See also Action Congress v INEC (2007) LPELR – 8988 (CA), Mbachu V. Anambra – Imo Rivers Basin Development Authority, Owerri (2006) All FWLR (Pt. 342) 1482 AT p 1497, Adeogun V. Fashogbon (2008) 17 NWLR (Part 1115) 149 AT p. 180.
Indeed, issues two, three and four for determination have become spent and I refuse to be drawn into the determination of an issue which are no longer live and with no utilitarian value except for its academic illumination and entertainment, which a consideration of issues two, three and four for determination would entail. Consequently, issues two, three and four for determination are hereby discountenanced. In Global Fleet Oil & Gas Ltd V. Allen (2021) LPELR – 54583(CA), this Court had per Sir Biobele Abraham Georgewill JCA, had cause to reiterate inter alia thus:
“Courts are loath to spend their precious and scarce judicial time considering and resolving merely academic questions in its judgment, which are better left for scholars in the Faculties of Law in our Universities to grapple with. An issue becomes merely academic once it is no longer of any utilitarian value to the determination of the appeal one way or the other.”
On the whole therefore, having resolved issue one for determination in favor of the Appellant against the 1st Respondent, and having discountenances issues two, three and four for determination, as having become merely academic on the face of the gross incompetence of the 1st Respondent’s Suit, I hold that the appeal has merit and ought to be allowed. Accordingly, it is hereby allowed.
In the result, the ruling of the Federal High Court, Abuja Division, Coram: I. E. Ekwo J, in Suit No. FHC/ABJ/CS/1636/2021: Chief Callistus Okafor V. Barrister Julius Abure & Ors delivered on 16/6/2022, in which the lower Court ordered the Appellant to file his Counter-Affidavit to the 1st Respondent’s Originating Summons within 7 days from 16/6/2022, is hereby set aside.
In its stead, the 1st Respondent’s Suit No. FHC/ABJ/CS/1636/2021: Chief Callistus Okafor V. Barrister Julius Abure & Ors now pending before the lower Court is hereby struck out for being incompetent.
There shall be cost of N500,000.00 against the 1st Respondent in favour of the Appellant only.
PETER OLABISI IGE, J.C.A.: I have read in advance the judgment just delivered by my learned brother GEORGEWILL, JCA. I entirely agree with the said judgment but wish to add few things.
My Lord has ably set out the facts culminating into this appeal and the issues which called for determination.
This is an action that was commenced by Originating Summons seeking among other things declaration that the meeting of 6th Respondent held on 9th October, 2018 and the National Convention of 6th Respondent held on 10th June, 2019 were in brazen violation of a valid consent judgment of the Federal High Court delivered on 20th day of March, 2018 and in contravention of the Constitution of the 6th Respondent to this appeal.
Issue 3 relates to whether lower Court has vires to interpret the Consent Judgment aforesaid entered in FHC/ABJ/CS/866/2018 – Labour Party & Ors v Comrade Salisu Mohammed & Ors on 20th March, 2018. The said Consent Judgment can be found on pages 63 – 67 of the Record of Appeal.
The settled position of the law is that judgment given in any cause or matter becomes immediately binding upon the parties to it and enforceable under the Sheriff and Civil Process Act. Such judgment remains binding and subsisting unless it is set aside by a higher Court. See CHIEF UJILE D. NGERE & ANOR VS CHIEF J. W. OKURUKET “XIV” & ORS (2014) 11 NWLR (PART 1417) 147 AT 173 C – H per RHODES- VIVOUR, JSC who said:-
“287(3) of the Constitution reads:
“287(3) The decisions of the Federal High Court the National Industrial Court, a High Court and of all other Courts established by this Constitution shall be enforced in any part of the federation by all authorities and persons, and by other Courts of law with subordinate jurisdiction to that of the Federal High Court, the National Industrial Court, a High Court and those other Courts, respectively.
The judgment of a Court of competent jurisdiction subsists until upset on appeal. While the judgment subsists every person affected by, it, or against whom art order is made must obey even if appears wrong judgment takes effect immediately they are delivered and every Court has inherent power to proceed to enforce Judgments at once. The enforcements on delivery can only be interrupted by a stay of execution provided there, is an appeal.
Parties are thus bound to obey Court orders that are clear and unambiguous, notwithstanding the fact that the order maybe wrong. So long as a party refuses to implement or obey a Court order he would not be given a hearing in any subsequent application. See Odogwu v. Odogwu (1992) 12 NWLR (PT.225) P. 539, Governor of Lagos State v. Ojukwu (1986) 3 NWLR (PT. 26) P. 39.” (Underlined mine).
The lower Court has no jurisdiction whatsoever to entertain the 1st Respondent’s action as constituted before it.
Originating Summons is not designed for the interpretation of judgment of a Court whether of coordinate jurisdiction or that of a higher Court. See RACE AUTO SUPPLY COMPANY LTD & ORS V. ALHAJI FAOSAT AKIB (2006) 13 NWLR (PART 997) 333 AT 351 E – 352 A – E per MOHAMMED, JSC who said:
“In this appeal, it is necessary to examine the status of the Lagos High Court consent judgment of Obadina, J. (as he then was) of 4-5-98 which was placed before Shitta-Bey, J. of the same Lagos High Court for interpretation by the appellants under Order 46 Rule 1 of the Lagos State High Court (Civil Procedure) Rules, which provides:
“Any person claiming to be interested under a deed will, or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for declaration of the rights of the parties interested.”
The question is whether the consent judgment of 4-5-98 between the parties which was before the trial Court for interpretation on the application of the appellants comes within the definition of “written instrument” capable of being accommodated under the rule. The word ‘instrument’ is defined in Strouds Judicial Dictionary, as ‘anything reduced to writing, a document of formal or solemn character. However, whether anything reduced to writing is an instrument largely depends on the context in which it is used. For example, the same Strouds Judicial Dictionary, Volume 3 at page 1386 stated plainly that “orders of Court were not instrument within Apportionment Act, 1834”. One may find support in this observation by Stroud to say that a judgment of a Court of law can hardly be accommodated under the words “other written instrument” under Rule 1 of Order 46 of the Lagos High Court (Civil Procedure) Rules, 1994, under which the appellants filed their application for the interpretation of the consent judgment of 4-5-98. In other words, a judgment of a Court of law cannot be subjected to interpretation by a Court of co-ordinate jurisdiction like a deed, a will or an instrument containing right and obligation of parties under Order 46 Rule 1 of the Lagos High Court (Civil Procedure) Rules. In any case, even if the consent judgment in the present case were to be regarded as instrument under Rule 1 of Order 46, the provision would not give a High Court jurisdiction to determine any question of construction or interpretation arising from the judgment of a Court of co-ordinate jurisdiction like the Lagos High Court presided by Obadina, J. (as he then was) and the same Court as presided by Shitta-Bey, J. or that of a higher Court like the Court of Appeal or this Court. If a judgment of a Court of law were to be regarded as an instrument like a deed or will, then even the judgment of the Court of Appeal or this Court could be subjected to interpretation by the High Court under Order 46 Rule 1 which is rather absurd. In the present case therefore, the Court below was quite right in its decision that the trial Lagos High Court presided over by Shitta-Bey, J. lacked competence to subject the consent judgment of the same Court delivered by Obadina, J. (as he then was) to interpretation of the contents or terms thereof.”
To my mind, the whole gamut of the questions postulated for answers in the suit and the reliefs sought therein were in effect an invitation to the lower Court to sit over the judgment of Court of coordinate jurisdiction and to sit as appellate Court on the judgment of his learned brother which he could not rightly do under the Constitution of the Federal Republic of Nigeria and the law.
In the case of MR AKINFELA FRANK COLE VS MR ADIM JIBUNOH & ORS (2016) 4 NWLR (PART 1503) 499 AT 521 C – H, the apex Court in the land reaffirmed the position stoutly when GALADIMA, JSC said:-
“A Court of co-ordinate jurisdiction has no constitutional power to sit as an appellate Court in another case and review and/or adjudicate on a decision or order made by another Court of the same hierarchy. See Chief Gani Fawehinmi v A.G., Lagos State (No. 1) (1989) 3 NWLR (Pt. 112) 707 at 724, paras. C -D where the Court
“The presumption has always been that the decisions of a superior Court are within jurisdiction and are correct until the contrary is proved. It seems to me that even if the decision of the superior Court is a nullity, the only proper way of challenging such decision must be by an application before the very Court which tried the case or by an application to the appropriate appellate Court even if the judgment of Longe, J., were a nullity the proper way to set it aside is by an appeal not be review before a Court of co-ordinate jurisdiction… it seems to me that, in view of the provision of the constitution, which carefully shares jurisdiction to the various Courts. Only the Court vested with the particular jurisdiction can interfere with the decision of another Court.
The ruling of the trial Court that it has jurisdiction to entertain the present suit is due to the averments of fraud contained In the statement of claim, whereas the substance or issue in the suit is a challenge and a disguise to set aside the decision and auction carried out by virtue of an order made by a Court of coordinate jurisdiction in the earlier suit No. ID/1 082/90. This is not proper.”
The 1st Respondent is estopped from instituting another action to enforce judgment already given in Suit FHC/ABJ/CS/1866/2014 by HON. O. KOLAWOLE (now Justice of Court of Appeal) on 20/3/2018 which has already stated the right of the parties.
The position taken by the 1st Respondent is an exercise in crass abuse of the process of Court which must be terminated. See
1. TTMIPRE SYLVA V INEC & ORS (2015) 16 NWLR (PART 1486) 576 AT 623 – 624 G – C per NGWUTA, JSC.
2. HON. TITUS ADENIYI OYEYEMI RTD & ORS V. HON. TIMOTHY OWOEYE (2017) 12 NWLR (PART 1580) 364 AT 397 C – H per BAGE, JSC who said:
“The logic of judicial sanctity dictates that the earlier suit and its appeal ought to be rested and decided one way or the other including whether or not the appeal was validly withdrawn. By instituting another action which embodies the issues as in the earlier action on appeal makes the later manifestly an unpardonable abuse of Court process.
This Court has succinctly enunciated in Ntuks v. NPA (2007) 13 NWLR (Pt. 1051) 392 at 419-420, paras. H-C on the meaning of abuse of Court process and held that:
“Abuse of Court process generally means that a party in litigation takes a most irregular, unusual and precipitates action in the judicial process for the sake of action qua litigation, merely to waste valuable litigation time. It is an action which could be avoided by the party without doing any harm to the matter in dispute. The process of the Court is used malafide merely to overreach the adversary to the direct annoyance of the Court. The Court process is initiated with malice or in some premeditated or organized vendetta, aimed at frustrating either the quick disposal of the matter or the abatement of the matter for no good cause. The Court process could also be said to be abused where there is no iota of law supporting it. In other words, the Court process is premised or founded on frivolity or recklessness.”
That precisely is what the 1st Respondent has done by the institution of this suit.
The lower Court lacked jurisdiction to entertain the suit and whatever order made in it by the lower Court is a nullity and this Court is under obligation to set it aside. See ALHAJI JIBRIN BALA HASSAN VS. DR. MUAZU BABANGIDA ALIYU & ORS (2010) 11 SCM 69 AT 93 E per ONNOGHEN, JSC, later (CJN, Rtd.) who said:
“It is trite that jurisdiction is very fundamental to adjudication and that where a Court lacks the competence to hear and determine a matter but proceeds to do so, an appellate Court is duty bound to nullify a decision resulting therefrom.”
It is for the above reasons and the fuller reasons given in the leading judgment that I entirely agree that this appeal be and it is thereby allowed and the order made in the suit, Suit No. FHC/ABJ/CS/1636/2021 on 16/6/2022 should be set aside.
I also agree that the said suit filed by the 1st Respondent be struck out.
I agree with the consequential order as to costs contained in the leading judgment.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: My learned brother, Biobele Abraham Georgewill, JCA made available to me the draft of the leading judgment which has just been delivered. In his characteristic and trademark sapience, he has fastidiously resolved the crucial issue thrust up for determination in this appeal. I agree with his reasoning and conclusion as the same accords with my views.
For the reasons contained in the leading judgment, which I adopt as mine, I avow my concurrence that this appeal is immensely meritorious. I therefore join in allowing the appeal and on the same terms as set out in the leading judgment. I abide by the order as to costs.
Appeal allowed.
Appearances:
Abdulaziz Ibrahim, Esq., with him, Mukhtar Bunza, Esq. For Appellant(s)
C. J. Edemeka, Esq., with him, Victor Okwudiri, Esq. – for 1st Respondent
Alex Ejesieme, SAN, with him, C. S. Uzodike, Esq. and E. C. Ezeh, Esq. – for 2nd – 4th Respondents
Kehinde Edun, Esq. – for 6th Respondent
Marshall Abubakar, Esq. – for 7th – 14th Respondents
The 5th Respondent, though duly served with hearing notice on 19/7/2022, did not participate at the hearing of this Appeal. For Respondent(s)
