COMRADE ADAMS ALIYU OSHIOMHOLE & ORS v. HON. ISHOLA BALOGUN FULANI & ORS
(2019)LCN/12694(CA)
In The Court of Appeal of Nigeria
CA/IL/148/2018
RATIO
COURT AND PROCEDURE: WHERE THE COMPLAIN IS ON THE EXERCISE OF THE LOWER COURT’S DECISION
“Where the ground complains of the lower Court’s use of wrong principles in the exercise of its discretion, the facts and circumstances in which the discretion was exercised are no longer in issue. The only issue in such a case is that of the alleged wrong principle and therefore, one of law. See (2010) 4 – 7 SC (Pt. 1) 242 @ 288. See also ANUKAM VS. ANUKAM (2008) 1 – 2 SC 34 @ 42; DIAMOND BANK PLC VS. PARTNERSHIP INVESTMENT COMPANY LIMITED (2009) 12 SC (Pt. 11) 159 @ 173.” PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
JURISDICTION: AT WHAT STAGE CAN THE ISSUE OF JURISDICTION BE RAISED?
“What’s more, the fact that the question or issue of jurisdiction of a Court of law can be raised at any stage and point in time, at the Court of trial, the Court of Appeal or the Supreme Court is no longer in doubt. MARAIRE VS. STATE (2017) ALL FWLR (Pt. 881) 1051 @ 1073, where in the Apex Court aptly postulated: The issue of jurisdiction can be raised at any stage and even for the first time before the Apex Court. Leave is not required to raise the issue of jurisdiction.” PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
JURISDICTION: POWER OF JUROSDICTION
“Most instructively, for a Court to have jurisdiction to entertain and determine a matter before it, it must satisfy certain fundamental conditions:
(a) It must be properly constituted in regard to the quorum or qualification of the membership thereof;
(b) It must ensure the fulfilment of any condition precedent to the exercise of its jurisdiction;
(c) The subject matter of the suit must be within its jurisdiction.
(d) The case must have been brought to Court by due process of law.
See MADUKOLU VS. NKEMDILIM (1962) SCNJ 341, OHAKIM VS. AGBASO (2011) ALL FWLR (Pt. 553) 1806 @ 1831 – 1832. Jurisdiction is a radical and most fundamental issue in any adjudication. Indeed, any act purportedly done by a Court that lacks jurisdiction is tantamount to a futile exercise. See MADUKOLU VS. NKEMDILIM (Supra) 34; UKWU VS. BUNGE (1997) 8 NWLR (Pt. 678) 527; UDENE VS. UGWU (1992) 3 NWLR (Pt. 491) 57; OLOBA VS. AKEREJA (1988) 7 SCNJ 56; ADETAYO VS. ADEMOLA (2010) ALL FWLR (Pt. 533) 1806.” PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
Between
1. COMRADE ADAMS ALIYU OSHIOMHOLE
(National Chairman, All Progressives Congress (APC)
2. MALLAM MAIMALA BUNI
(National Secretary, All Progressives Congress (APC)
3. ALL PROGRESSIVES CONGRESS (APC)
4. ALL PROGRESSIVES NATIONAL WORKING COMMITTEE Appellant(s)
AND
1. HON. ISHOLA BALOGUN FULANI
(Chairman, All Progressives Congress (APC) Kwara State)
2. PRINCE CHRISTOPHER TUNJI AYENI
(Secretary, All Progressives Congress( APC) Kwara State for themselves and on behalf of members of Executive Committee of All Progressives Congress (APC) Kwara State)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. HON. BASHIRU BOLARINWA
(for himself and on behalf of members of the so called or purported Caretaker Committee of Kwara State Chapter of All Progressives Congress (APC) Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment):
The instant appeal is a fall-out of the ruling of the High Court of Kwara State, holden at Ilorin Judicial Division and delivered on October 24, 2018 in Suit No. KWS/292/2018. By the ruling in question, the Court below Coram T. S. UMAR, J; granted the 1st and 2nd Respondents? (Claimants?) application seeking to amend their Originating Summons, filed on July 31, 2018, thereby challenging the dissolution of all forms of Kwara State Executive Committees of the 3rd Appellant at the Ward, Local Government and State levels, respectively.
BACKGROUND FACTS
The facts and circumstances surrounding the instant appeal are gleanable from the records of appeal. The genesis of the trending crises bedevilling the respective parties leading to the instant appeal could be traced to July 30, 2018. That was indeed the day the National Working Committee (NWC) (4th Appellant) of the 3rd Appellant (APC) in its own wisdom dissolved all forms of the Executive Committees of the levels of the Ward, Local Government and State in Kwara State.
Consequent whereupon, the 1st and 2nd Respondents herein challenged the said action of the Appellants by instituting an action vide an Originating Summons in the Court below. That was on July 31, 2018.
By the said Originating Summons, the 1st and 2nd Respondents sought the determination of three fundamental questions, viz:
1. Whether the Claimants and other members of the Kwara State Executive Committee of All Progressives Congress (APC) duly elected and sworn-in to their respective offices as State Officers of the All Progressives Congress (APC) in Kwara State on the 19th May, 2018 and 6th June, 2018 respectively in accordance with the Constitution of the All Progressives Congress (APC) are not entitled to remain in office for a period of four (4) years in which they were elected.
2. Whether there is lacuna or any tenable ground upon which the 1st, 2nd and 4th Defendants acting for the 3rd Defendant can purport to dissolve the Kwara State Executive Committee of the All Progressives Congress (APC) in Kwara State pursuant to the Constitution of the All Progressives Congress (APC).
3. Whether the action of the 1st, 2nd and 4th Defendants in purporting to dissolve the Kwara State Executive Committee of the All Progressives Congress (APC) in Kwara State and or remove the Claimants and other elected State Officers of the All Progressives Congress (APC) in Kwara State from their respective offices in the guise of exercising any power under the Constitution of the All Progressives Congress (APC) is not ultra-vires, illegal, unconstitutional, null and void and a gross abuse of powers.
The 1st and 2nd Respondents thereby sought the following reliefs:
1. A declaration that the Claimants as bona fide members of the All Progressives Congress (APC) in Kwara State were duly and properly elected to various State Offices of the All Progressives Congress (APC) in the Kwara State Congress of the All Progressives Congress (APC) conducted at the State Banquet Hall, Ilorin, Kwara State on the 19th May, 2018 in accordance with the Constitution of the All Progressives Congress (APC).
2. A declaration that the 1st Claimant as well as other State Officers of the All Progressives Congress (APC) in Kwara State were duly sworn-in to office by the 1st Defendant and 1st Claimant respectively on the 4th June, 2018 and 6th June, 2018 respectively in accordance with the Constitution of the All Progressives Congress (APC).
3. A declaration that the 1st, 2nd and 4th Defendants directly or through any person or officer of the 3rd Defendant lack the power to dissolve the Kwara State Executive Committee of the All Progressives Congress (APC) in Kwara State contrary to the Constitution of the All Progressives Congress (APC).
4. A declaration that the “move, pretention, posturing and or attempt by the 1st, 2nd, and 4th Defendants to purport or pretend to dissolve the Kwara State Executive Committee of the All Progressives Congress (APC) and purport to remove the Claimants from their respective State Offices of the All Progressives Congress (APC) in Kwara State contrary to the Constitution of the All Progressives Congress (APC) is illegal, null and void, ultra-vires, unconstitutional and a gross abuse of power by the 1st, 2nd and 4th Defendants.
5. A declaration that the Claimants as bona fide members of the All Progressives Congress (APC) in Kwara State duly and properly elected to various State Offices of the All Progressives Congress (APC) in the Kwara State Congress of the All Progressives Congress (APC) conducted at the State Banquet Hall, Ilorin, Kwara State on the 19th May, 2018 in accordance with the Constitution of the All Progressives Congress (APC) are entitled to occupy their respective offices for a period of four (4) years in accordance with the Constitution of the All Progressives Congress (APC).
6. An order of perpetual injunction restraining the 1st, 2nd, 3rd, 4th and 6th Defendants or other persons or officers of the 3rd Defendant acting for the 1st, 2nd, 3rd, 4th and 6th Defendants from purporting to dissolve the Kwara State Executive Committee of the All Progressives Congress (APC) or removing the Claimants and other State Officers of the All Progressives Congress (APC) in Kwara State from Office or disturbing, preventing or obstructing the Claimants and other State Officers of the All Progressives Congress (APC) in Kwara State from occupying the various offices they were duly elected to on 19th May, 2018 and performing the function of their respective offices unhindered.
The Originating Summons is supported by a 32 paragraphed affidavit deposed to personally by the 1st Respondent herein.
Attached to the said affidavit are various documents marked as Exhibits APC – 01 – 04 respectively.
In reaction to the Originating Summons in question, the Appellants filed in the Court below a memorandum of appearance, a 6 paragraphed counter affidavit deposed to by one Yohanna Shankuk, a Litigation Officer in the firm of Festus Keyamo Chambers, Solicitors to the 1st to 4th Defendants, and a Written Address. That was on August 29, 2018.
However, in the course of the pendency of the said action, the 1st and 2nd Respondents filed an application in the Court below on October 2, 2018, thereby seeking:
1. LEAVE AND ORDER OF THIS Honourable Court granting leave to the Claimants/Applicants to amend their Originating Summons and other accompaniments in this case in line with the proposed Amendments attached herein as Exhibit A.
2. AND FOR SUCH FURTHER OR OTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances of this case.
The said application was predicated upon four grounds and duly supported by a 7 paragraphed affidavit dated 02/10/2018 and a further affidavit, dated 03/10/2018.
In reaction to the application, the 6th Defendant (4th Respondent) filed a counter affidavit dated 09/10/2018. On the part thereof, the 1st and 2nd Respondents filed a Reply to the 6th Defendant?s counter affidavit on 12/10/2018.
Not unnaturally, on 05/11/2018, the Appellants filed in the Court below a Notice of Preliminary Objection, thereby challenging the competence of the Suit and the jurisdiction of the Court to entertain the case. The Preliminary Objection was predicated upon a total of 9 Grounds, viz:
a) The suit as constituted is incompetent as the Original Originating Summons and the Amended Originating summons are not sealed by the Registrar of the Court.
b) The suit is premature as the claimants did not explore the internal mechanism contained in the Constitution of the 3rd defendant before resorting to Court.
c) The claimants have no locus standi to institute and maintain this suit.
d) The suit does not disclose a cause or any reasonable cause of action.
e) The 5th defendant is a Federal Government Agency that can only be sued before the Federal High Court.
f) The suit is not properly constituted as proper and necessary parties are not made parties by the claimants.
g) The suit is a hostile proceeding and as such the use of Originating Summons instead of a Writ of Summons renders the suit un-maintainable as formulated.
h) The suit is an abuse of Court process.
i) By virtue of the above, the Court has no jurisdiction to entertain this suit as constituted.
On 17/10/2018, when the application in question came up for hearing, the counsel to the parties addressed the Court thereon, thereby resulting in the Court adjourning the matter to 24/10/2018 for ruling. On the said date, the Court did in fact deliver the ruling to the following conclusive effect:
Having gone through the amendment sought, I am of the view that it is, related to the Claimants/Applicants cause of action and it will assist the Court in the just determination of this case. Also parties have not closed their respective case even on the facts. The Respondents have not shown how the grant of the amendment sought would cause injustice or over reach them. I find that the counter affidavit of the Respondents dwells majorly on the issues to be canvassed at the substantive case.
Accordingly I hold that the application is meritorious and same is granted as prayed.
See Pages 343 – 347 of the Record.
Not unexpectedly, the Appellants were dissatisfied with the vexed ruling, thus filed the Notice of Appeal thereof on 01/11/2018, which is predicated upon six (6) Grounds. By the said notice of appeal thereof, the Appellants have urged upon the Court to:
Allow the Appeal, set aside the decision/ruling of the Court below and strike out/dismiss the 1st and 2nd claimants/respondents? suit for being incompetent and for lack of jurisdiction of Court.
IN THE ALTERNATIVE
The appellants pray the Court to allow this Appeal, set aside the decision/ruling of the Court below and transfer the case and the appellants’ objection to the jurisdiction of the Court to another judge of the Kwara State High Court for hearing and determination. See pages 349 – 354 of the Record.
On 30/01/19, when the appeal came up for hearing, the learned counsel to the 1st and 2nd Respondents wrote a letter (dated -February, 2019) thereby urging the Court for an adjournment to either 6th or 7th Respondents.
In the absence of any objection by the Appellants’ counsel and 3rd & 4th Respondents’ counsel, the appeal was adjourned to 04/02/2019 for hearing.
On the said 04/02/2019, when the appeal finally came up for hearing, the learned counsel to the parties addressed the Court and adopted their submissions contained in the respective briefs of argument thereof, thus resulting in reserving judgment. Most particularly, the Appellants’ brief, filed on 28/11/18, spans a total of 30 pages. At pages 3 – 4 of the brief, four Issues have been canvassed, Viz:
1. Whether the Originating Summons with which the 1st and 2nd respondents as the claimants commenced this suit is competent so as to vest the Court with the requisite jurisdiction (Ground 2).
2. Whether or not the Court below was not wrong when it failed to consider and pronounce on the issue of its jurisdiction to entertain the 1st and 2nd respondents? suit raised before it when from the uncontroverted facts contained in the counter-affidavit of the appellants against the motion and the argument canvassed before the trial Court, the 1st and 2nd respondents lack locus standi to initiate and or to continue the prosecution of the case which defect renders the suit incompetent and deprived the Court of the requisite jurisdiction to entertain or continue to entertain the same (Grounds 1 and 3).
3. Whether the Court below was not wrong in holding that the application for amendment as constituted was in compliance with Order 28, Rule 1 of the Kwara State High Court (Civil Procedure) Rules 2005 and same was therefore competent and grantable when the application did not state/show/demonstrate/delineate and or outline the areas and extent of the proposed amendments. (Ground 4).
4. Whether the Court below was not wrong in granting the application for amendments when the proposed amendments are not related to the 1st and 2nd respondents’ cause of action and not founded on any known legal right or justiceable cause of action against which the 1st and 2nd respondents can complain under the Constitution of the 3rd appellant and without due regard to relevant decisions of the Supreme Court placed before the Court more so that the amendments have the effect of taking the case outside the purview of the jurisdiction of the Court below as a State High Court. (Grounds 5, 6 and 7).
The Issue No. 1 is argued at pages 4 – 7, to the effect that the Originating Summons by which the 1st and 2nd Respondents commenced the instant suit is incompetent and deprived the Court below of the requisite jurisdiction to entertain the suit as constituted.
It was submitted, that the (Original) Originating Summons, filed on 31/07/18 (pages 1 – 5 of the Record) was not sealed by the Registrar of the Court as required by Order 6 Rule 2 (1) of Kwara State High Court (Civil Procedure) Rules, 2005. Therefore, the original Originating Summons is incurably defective, null and void. Accordingly, the Court lacks jurisdiction to entertain same. See IGIRIGA VS. BASSEY (2013) LPELR 20346; EWUKOYA VS. BUARI (2017) ALL FWLR (Pt. 881) 1099 @ 1112, 1116 ? 1117.
It was argued, that the amended Originating Summons pursuant to the order of Court made on 24/10/18 would not revive the dead suit as the amendment cannot cure the incurable defect/virus. See OYEWOLE VS. ADEDEJI (2014) LPELR – 22554. OLAGBENRO VS. OLAYIWOLA (Supra) @ 70 ? 70; AKINSANYA VS. FMFL (2010) LPELR – 36 – 87, 1 @ 9.
Further argued, that the issue of jurisdiction though not raised at the hearing of the application can be raised on appeal without leave. See MARAIRE VS. STATE (2017) ALL FWLR (Pt. 881) 1051 @ 1073.
The Court is urged to so hold, and resolve the Issue No. 1 in favour of the Appellants, allow the appeal, and strike out the suit.
The Issue No. 2 is argued at pages 7 – 13, to the effect that the Court below was wrong when it failed to consider and pronounce on the issue of its jurisdiction to entertain the suit. That the issue was properly raised and argued before the Court.
Reference was made to the counter affidavit, especially paragraph 7 (ix) and (x) and Exhibit 1 attached thereto (pages 218 – 222 of the Record) regarding the issue of the 1st and 2nd Respondents? locus standi to initiate and or maintain the suit, was also argued by the Appellants. However, the Court did not consider and pronounce on that issue which impinges on its jurisdiction to entertain the suit. See NDIC VS. CBN (2002) 3 SC 1 @ 9; INAKOJU VS. ADELEKE (2007) ALL FWLR (Pt. 353) 3 @ 87. KATTO VS. CBN (1991) 12 SCNJ 1 @ 26.
Further argued, that by Article 21 (D) (V) of the 3rd Appellant, the 1st and 2nd Respondents do not have the requisite locus standi to initiate and maintain the action. See ENANG VS. UMOH (2012) LPELR – 8386 1 @ 26028; INEC VS. AC (2007) LPELR – 9028, 1 @ 17 – 18 et al.
The Court is urged to resolve this Issue 2 in favour of the Appellants and against the Respondents, allow the appeal and strike out or dismiss the suit.
The Issue No. 3 is argued at pages 13 – 15, to the effect that the Court below was wrong in holding that the application for amendment as constituted was in compliance with Order 28, Rule 1 of the Kwara State High Court (Civil Procedure) Rules, 2005 and therefore competent. See IMIE VS. POPOOLA (2008) ALL FWLR (Pt. 416) 1975 @ 1985.
The Court is urged to resolve Issue 3 in favour of the Appellants, allow the appeal, set aside the decision of the Court below, and strike out the application for being incompetent.
The Issue No. 4 has been extensively argued at pages 15 – 26 of the said brief, to the effect that the Court below was wrong in granting the application in amendments when the proposed amendments were not related to the 1st and 2nd Respondents? cause of action and not founded on any unknown legal right or justiciable cause of action against which they can complain under the Constitution of the 3rd Appellant. See Order 28, Rule 1 (Supra); NDIC VS. JACKSON DEVOS LTD (2014) LPELR 23378, 1 @ 41.
It is argued, that by Article 13.4 (v) and (xiv) of the 3rd Appellant’s Constitution, it is clear that the State Executive, Committee of the 3rd Appellant does not have any power or legal right over the nomination process of candidates for elections in to offices of the President, Governor and Members of National and State Assemblies. See YAR’ADUA VS. YANDOMA (2014) 12 SC (Pt. 111) 64 @ 129 et al.
The Court is urged to resolve Issue 4 in favour of the Appellants.
Conclusively, the Court is urged upon to allow the appeal, set aside the ruling/decision of the Court below, and strike out/dismiss the substantive suit or alternatively allow the appeal, set aside the ruling/decision and remit the case to the Court below for trial before another Judge.
Contrariwise, the 1st and 2nd Respondents? brief, filed on 21/01/19, spans a total of 22 pages. At pages 3 ? 6 of the said brief, a notice of Preliminary Objection has been raised and argued, thereby challenging the competence of the instant appeal and the jurisdiction of the Court of Appeal to entertain same. The Preliminary Objection is predicated upon a total of six grounds, Viz:
a) Grounds 1, 2, 3, 4, 5, 6 and 7 are grounds of fact or at best grounds of mixed law and facts.
b) The entire appeal is against the exercise of discretion by the trial Court by virtue of which all the grounds are either grounds of fact or at best grounds of mixed law and fact.
c) The appeal is against an interlocutory decision which competence is dependent upon its grounds of appeal being grounds of law alone.
d) The appellants neither sought nor obtained leave to render the grounds of appeal competent.
e) All the grounds of appeal are rendered incompetent for failure to obtain leave of either the trial Court or this Honourable Court.
f) Grounds 1, 2, 3, 5, 6 and 7 do not arise from the decision appealed against and are not directed against the decision of the trial Court.
Under paragraphs 4.0 – 4.4 of the brief, it was submitted, that by virtue of the provisions of Section 241 (1) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the instant appeal qualifies as an interlocutory appeal are not grounds of law simpliciter. Therefore, by Section 242 (1) of the Constitution leave of the Court is a prerequisite; otherwise all the grounds are incompetent. See OGBECHIE VS. ONOCHIE (NO.1) (1986) 2 NWLR (Pt. 23) 484; AMUDA VS. ADELODUN (1994) 8 NWLR (Pt. 360) 23 @ 30 F – G; et al.
The Court is urged to disregard the description of the grounds given by the Appellants’ counsel.
Under paragraph 4.5 – 4.6 of the said brief, it is argued the appeal is against the exercise of discretion of the Court below in regard to the amendment of the Originating Summons. Therefore the grounds border on exercise of Court’s discretion, which are at best questions of mixed law and facts. See SHITTU VS. PAN LIMITED (Supra). The two grounds are thus liable to be struck out. The Court is urged.
Paragraphs 4.7 – 4.9 challenge the competence of the appeal on the ground that the ground of the Notice of Appeal do not arise from the decision appealed against.
It is submitted in the main, that it is clear that none of the grounds of appeal attack the ratio for the decision on appeal. On the converse, they set up distinct issues not expressly pronounced upon by the Court below (pages 346 – 347 of the Record). To that extent, the said grounds are allegedly incompetent, thus liable to be struck out. See FRN VS. NWOSU (2017) ALL LR (Pt. 883) 1483 @ 1522; ACN VS. NYAKO (2013) ALL FWLR (Pt. 686) 424 @ 449.
The Court is urged to so hold and accordingly strike out Grounds 1, 2, 3, 5, 6 and 7 of the said Notice of Appeal.
The argument on the merits of the appeal is proffered at pages 7 – 24 of the 1st and 2nd Respondents’ brief. However, the learned silk has deemed it expedient to formulate only two issues for determination, Viz:
ISSUE NO. 1:
Whether the 1st and 2nd Respondents’ suit is fundamentally vitiated and incompetent so as to oust the jurisdiction of the lower Court to entertain the application for amendment? Grounds 1, 2 and 3 of the Notice of Appeal.
ISSUE NO. 2.
Whether the lower Court was correct in the circumstance of the case before it to have granted the 1st and 2nd respondents’ application for amendment of the originating summons’ Ground 4, 5, 6 and 7 of the Notice of Appeal.
The Issue No. 1 is extensively argued at pages 8 – 16 of the brief:
As a preliminary point, it’s submitted to the effect that the Court below was right when it held at page 347 of the record, that the Appellants’ counter affidavit ‘dwells majorly on the issue to be canvassed at the substantive case.”
Regarding the question of non-sealing of the Originating Summons, it was submitted that the duty of signing the Originating Summons as undoubtedly that of the Registrar of the Court below. That the Claimant cannot be penalized for the Registrar’s omission to sign or seal the Originating Summons. See ALAWODE VS. SEMOH (1995) SCNLR 90 @ 95; FAMFA OIL LIMITED VS. AG FEDERATION (2003) 9 ? 10 SC 31 @ 43 ? 44; et al.
It is argued, that (breach of) Order 6 Rule 2(1) of the Kwara State High Court (Civil Procedure) Rules, 2005 is a mere irregularity and has nothing to do with jurisdiction of the Court. The Court is urged to so hold that the action is competent and the Court below has jurisdiction to determine same.
On question of locus standi, it is submitted that by virtue of all reliefs in the Amended Originating Summons and paragraphs 1 – 6, 9 – 22 of the Affidavit and Exhibits BF1A and BF1B attached thereto, and Article 17(1) of the 3rd Appellant’s Constitution, the Claimants have satisfied all prerequisites needed to initiate Court processes through originating processes to challenge the purported dissolution of the Kwara State Executive Committee duly constituted. SeeEZE VS. PDP (2018) 7 SC (Pt. 1) 50 @ 74; INAKOJU VS. ADELEKE (2006) 52 WRN 201, et al.
The Court is urged to so hold, and resolve the Respondents’ Issue No. 1 (Appellants’ Issues 1 and 2) in favour of the 1st and 2nd Respondents, against the Appellants.
The Issue No. 2 is extensively argued at pages 16 – 24 of the brief. In the main, it is submitted to the effect that the exercise of the Court’s discretion to grant the amendment of the Originating Summons was justified by the facts, put forward by the 1st and 2nd Respondents. Allegedly, there is nothing in the Rules of Court that fettered the power of the Court to grant the amendment. The Appellants were unable to show what they suffered on account of the grant of the application for amendment.
It was argued, that the unassailable position (pronouncement) taken by Court at page 347 has not been challenged or appealed against by the Appellants. The implication of the unchallenged finding is that such a finding is correct. See OSENI VS. BAJULU (2010) ALL FWLR (Pt. 511) 813 @ 829.
The Court is urged to resolve the Issue No. 2 in favour of the Respondents.
Conclusively, the Court is urged to dismiss the appeal and uphold the decision of the trial Court.
In reaction to the 1st and 2nd Respondents’ brief, the Appellants had filed a Reply Brief on 25/01/2019. The Appellants? Reply to the 1st and 2nd Respondents’ Preliminary Objection is contained at pages 1 – 2. By the said Reply Brief thereof, the Appellants have conclusively urged upon the Court to hold that all the cases cited by the Respondents are in-opposite and misapplied, and accordingly dismiss the Preliminary Objection for being mere red-herring and an abuse of Court process.
The Appellants’ reply on points of law to the 1st and 2nd Respondents’ brief, is contained at pages 6 – 10 of the said reply brief. In the main, the Appellants have conclusively urged upon the Court to discountenance the wooly, misleading and misconceived submissions of the Respondents, and accordingly allow the appeal.
I have critically, albeit dispassionately, considered the nature and circumstances surrounding the instant appeal, the far-reaching submissions of the learned senior counsel contained in the respective briefs of argument thereof vis–vis the Record of Appeal and the Additional Record of Appeal, as a whole.
As alluded to above, the 1st and 2nd Respondents have deemed it expedient to raise and argue a Preliminary Objection at pages 3 – 7, paragraphs 3.0 – 4.11, of the brief thereof. Thus, I have deemed it not only expedient but equally imperative to, first and foremost, deal with the said Preliminary Objection before proceeding, if necessary, to determine the appeal on the merits.
DETERMINATION OF THE 1ST AND 2ND RESPONDENTS’ NOTICE OF PRELIMINARY OBJECTION
Regarding the question of whether the appeal is incompetent on the ground that it is against the exercise of discretion by the Court below, thus the Grounds of Appeal are either of fact or at best of mixed law and facts, parties are indeed ad idem, that the ruling being appealed against was in the course of exercising the discretionary power of the Court below. Instructively, the question of whether or not a ground of appeal against the exercise of Court discretion is not necessarily solely or purely determined on the basis of the exercise of discretion but rather on the nature and questions inherent in such a ground. This issue has been postulated upon in a plethora of decisions. In FBN PLC VS. T.S.A. LIMITED; it was aptly held:
The important yardstick for the classification of a Ground of Appeal is not in the form of the question it raises but for instance?.
(e) Where the Ground of Appeal questions the exercise of discretion by the Trial Court, it is undoubtedly not a ground of law and fact because this manner in which a Court ought to exercise its discretion in a particular case is a question of fact depending on facts and circumstances of each case.
Where the ground complains of the lower Court’s use of wrong principles in the exercise of its discretion, the facts and circumstances in which the discretion was exercised are no longer in issue. The only issue in such a case is that of the alleged wrong principle and therefore, one of law. See (2010) 4 – 7 SC (Pt. 1) 242 @ 288. See also ANUKAM VS. ANUKAM (2008) 1 – 2 SC 34 @ 42; DIAMOND BANK PLC VS. PARTNERSHIP INVESTMENT COMPANY LIMITED (2009) 12 SC (Pt. 11) 159 @ 173.
In the instant case, it is obvious that the Appellant’s seven grounds of the Notice of Appeal specifically raise issues of law alone, as such the leave of Court is not at all required for the validity thereof. And I so hold.The seven grounds of the Notice of Appeal in contention filed on 01/11/2018 are contained at pages 349 – 354 of the Record.
GROUND 1
The trial Court erred in law by failure to consider and pronounce on issue of incompetence of the entire suit and the application for amendment predicated on it which issue was raised and argued before it.
Undoubtedly, this issue raises an issue of the incompetence of the suit and refusal by the Court below to consider relevant authoritative decisions of the Apex Court cited and relied upon by learned counsel. Thus, it has nothing to do with facts. See AKANDE (2010) 12 SC (Pt. IV) 75 @ 106.
GROUND 2
The trial Court erred in law by entertaining and granting the 1st and 2nd Respondents? application for amendments of the Originating Summons when the Originating Summons/Suit itself, is incurably defective as same is not sealed by the Registrar of the Kwara State High Court which incurable defect rendered the Originating Summons/Suit incompetent thereby depriving the trial Court of the requisite jurisdiction to entertain the suit.
The said Ground 2 raises the question of competence of the Originating Summons vis–vis the jurisdiction of the Court below to entertain and determine same. It calls for the interpretation and application of Order 6, Rule 2 of the Kwara State High Court (Civil Procedure) Rules, 2005. The ground is one of law. See FBN PLC VS. T.S.A. LIMITED (Supra), wherein the Apex Court held:
(c) Where the question which the Court is bound to answer in accordance with a Rule of Law arises out of statutory provisions and interpretation of documents, it is, a Ground of Law.
GROUND 3
The trial Court erred in law by entertaining the 1st and 2nd Respondents? application for amendments of the Originating Summons, when the Originating Summons/Suit itself is not for being pre-mature and for lack of locus standi of the 1st and 2nd Claimants/Respondents which deprived the trial Court of the requisite jurisdiction to entertain the suit.
The fact that ground 3 raises the very fundamental question of locus standi and prematurely nature of the 1st and 2nd Respondents’ action, which basically is predicated upon construction of the 3rd Appellant’s Constitution, undoubtedly qualifies it to be a ground of law. See FBN PLC VS. T.S.A. LIMITED (2010) 4 – 7 SC (Pt. 1) @ 288.
GROUND 4
This ground raises the question of interpretation and application of Order 28, Rule 2 of the Kwara State High Court Rules (Supra). Thus, Ground 4 qualifies to be a ground of law. See ODUNUKWE VS. OFOMATA (2010) 12 SC (Pt. 111) 101 @ 114 – 145.
GROUND 5
The trial Court erred in law by granting the 1st and 2nd Claimants/Respondents’ application for amendment of the Originating Summons when the amendments are not only useless but they are in respect of matters that are not related to the headship of the 3rd Appellant in Kwara State and in which the 1st and 2nd Claimants/Respondents have no rights which could be violated so as to give the 1st and 2nd Respondents any right or cause of action.
The instant Ground 5 of Appeal raises, the question of interpretation and application of Article 13.4 (V) and (XIV) of 3rd Appellant’s Constitution in regard to the proposed amendments being by the 1st and 2nd Respondents. Undoubtedly, the said Ground 5 is one of the laws. See MINISTER OF POWER AND MINERAL RESOURCES VS. EXPO SHIPPING NIGERIA LIMITED (2010) 3 – 5 SC (Pt. 1) 171 @ 182.
GROUND 6
The trial Court erred in law by granting the 1st and 2nd Claimants/Respondents’ application for amendment of the Originating Summons when by reliefs 9, 10 and 13 contained in the proposed Amended Originating Summons, which are reliefs of compelling order and injunctions against the 4th respondent (a Federal Government Agency) in the discharge of its administrative and executive actions, the 1st and 2nd respondents took the action out of the jurisdiction of the Court which is a High Court of the State.
Undoubtedly, ground 6 of the notice of appeal is predicated on proper interpretation of Section 251 (1) (r) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. Fundamentally, ground 6 is a ground of law, pure and simple. It raises the very fundamental question of not only the competence of the action, but the jurisdiction of the Court below to entertain, hear and determine the action. See GENERAL ELECTRIC COMPANY VS. AKANDE (Supra) @ 106.
What’s more, the fact that the question or issue of jurisdiction of a Court of law can be raised at any stage and point in time, at the Court of trial, the Court of Appeal or the Supreme Court is no longer in doubt. MARAIRE VS. STATE (2017) ALL FWLR (Pt. 881) 1051 @ 1073, where in the Apex Court aptly postulated:
The issue of jurisdiction can be raised at any stage and even for the first time before the Apex Court. Leave is not required to raise the issue of jurisdiction.
GROUND 7
The trial Court erred in law by its failure to consider and follow Supreme Court decisions on lack of power of State Executive Committee of a political party in Nigeria to Conduct Primary Election for the nomination/selection of the candidates of the party for elections in to public office when the decisions were brought to its attention.
It must be postulated that ground 7 of the notice of appeal, by the express wordings and purport thereof, raises a very fundamental error of law regarding the failure by the Court below to discharge an onerous and bounden duty to pronounce on the issue validly raised before it and to also take in to account the decision the Apex Court cited and relied upon by Appellants’ learned counsel.
Thus, by any stretch of imagination, the said ground 7 of the notice of appeal cannot be said to be ground of fact or of mixed law and facts. And I so hold. See GENERAL ELECTRIC COMPANY VS. AKANDE (Supra) @ 106.
On the whole, against the backdrop of the foregoing postulations, it is obvious that the 1st and 2nd Respondents’ Preliminary Objection is grossly lacking in merits.
Thus, without any further hesitation, the said 1st and 2nd Respondents’ Preliminary Objection ought to be, and same is hereby discountenanced and dismissed by me.
Hence, having effectively dealt with and dismissed the preliminary objection in question, the coast is now very much clear for me to proceed to determine the appeal on the merits.
DETERMINATION OF THE APPEAL ON THE MERITS
The four issues of the Appellants and the two issues of the 1st and 2nd Respondents raised in their respective briefs of argument are not mutually exclusive. The said issues have been apparently distilled from distinct and specific grounds of the notice of appeal. However, in my view the four issues of the Appellants are much more comprehensive than those of the 1st and 2nd Respondents. Thus, I have deemed it expedient to adopt the Appellants’ four issues for the determination of the appeal, anon.
ISSUE NO. 1
The first issue raises the vexed question of whether the Originating Summons with which the 1st and 2nd Respondents (claimants) commenced the instant suit is competent so as to vest the Court below with the requisite jurisdiction [to entertain hear and determine same]. The first issue is distilled from ground 2 of the notice of appeal.
Most instructively, for a Court to have jurisdiction to entertain and determine a matter before it, it must satisfy certain fundamental conditions:
(a) It must be properly constituted in regard to the quorum or qualification of the membership thereof;
(b) It must ensure the fulfilment of any condition precedent to the exercise of its jurisdiction;
(c) The subject matter of the suit must be within its jurisdiction.
(d) The case must have been brought to Court by due process of law.
See MADUKOLU VS. NKEMDILIM (1962) SCNJ 341, OHAKIM VS. AGBASO (2011) ALL FWLR (Pt. 553) 1806 @ 1831 – 1832.
Jurisdiction is a radical and most fundamental issue in any adjudication. Indeed, any act purportedly done by a Court that lacks jurisdiction is tantamount to a futile exercise. See MADUKOLU VS. NKEMDILIM (Supra) 34; UKWU VS. BUNGE (1997) 8 NWLR (Pt. 678) 527; UDENE VS. UGWU (1992) 3 NWLR (Pt. 491) 57; OLOBA VS. AKEREJA (1988) 7 SCNJ 56; ADETAYO VS. ADEMOLA (2010) ALL FWLR (Pt. 533) 1806.
Most instructively, in MADUKOLU VS. NKEMDILIM, the Apex Court aptly postulated that where it is apparent on the record that a judgment or decision of a Court is a nullity due to lack of jurisdiction, it is the duty of trial Court or appellate Court, of its own motion (suo motu) to take the point, provided however, that opportunity is given to both sides to address the Court thereupon.
In WEST MINISTER BANK LIMITED VS. EDWARDS (1942) AC 529, Viscount Simon L. J. aptly postulated at 529.
There are of course, cases in which a Court should itself take an objection of its own, even though the point is not raised by any parties to it.
Again, a Court not only may, but should, take objection where the absence of jurisdiction is apparent on the face of the proceedings. Thus, an appellate Court not only may, but must take objection that it has no jurisdiction to hear an appeal if it is apparent that no right of appeal exists.
In his Lordships’ contribution, Lord Wright stated at page 536 of the same Report:
Now it is clear that a Court is not entitled but bound to put an end to proceedings if at any stage and by any means it becomes manifest that they are incompetent. It can do so, of its own initiative, even though the parties have consented to the irregularity, because as Willes, J.; said in City of London Corporation V. COX (3) in the course of giving the answers of the judges to this House, ‘Mere acquiescence does not give jurisdiction’
What’s more, in FARQUHARSON VS. MORGAN (4), Lord Halsbury equally and reiterated the doctrine thus:
It has long been settled that where an objection to the jurisdiction of an inferior Court appears on the face of the proceedings, it is immaterial by what means and by whom the Court is informed of such objection. The Court must protect the prerogative of the crown and the due course of administration of justice by prohibiting the inferior Court from proceeding in matters as to which it is apparent that it has no jurisdiction.
In the instant case, the originating summons in question is contained at pages 1 – 5 of the record of appeal. It is obvious beyond any controversy, that the originating summons does not bear any seal of the Registrar of the Court below.
The originating process however bears the National Bar Associations stamp affixed thereto at the foot of page 4 of the record. Apparently, the failure to affix the seal on the originating summons, has amounted to obscuring the duty imposed upon the Registrar by Order 6 Rule 2 (1) of the High Court Rules. Undoubtedly, the NBA stamp cannot by any stretch of imagination override the Registrar?s seal. By Order 6, Rule 2 (1) of the Kwara State High Court (Civil Procedure) Rules 2005 (Supra):
The Registrar shall seal every originating process where upon it shall be deemed to be issued.
It is trite, that the duty of the Registrar of the Court to seal an originating process, such as an Originating Summons (Motion) or writ of summons is a fundamental requirement of the law. Thus, any failure by the registrar to seal an originating process, such as the originating summons, is not a mere irregularity. Indeed, it is a condition precedent that foists jurisdiction upon the Court. As such, such defect is so crucial that it renders the Court devoid of jurisdiction to determine the action. See IGIRIGA VS. BASSEY (2013) LPELR – CA/C/174/2009 @ 17 PARAGRAPHS C – F.
As alluded to above under Order 6 Rule 2 (1) of Kwara State High Court (Civil Procedure) Rules, 2005 (Supra), the Registrar shall seal every originating process whereupon it shall be deemed to be issued. Contrary to submission of the 1st and 2nd Respondents’ learned senior counsel, the seal as envisaged by the said Order 6 Rule 2 (1) (Supra) is a condition precedent. Thus, failure by the Registrar to discharge the onerous duty of affixing seal on an originating process, as in the instant case, the Court is deprived of its jurisdiction to entertain and determine the unsealed originating process in question. The word ‘shall’ couched in Order 6 Rule 2 (1) OF THE High Court Rules (Supra) is mandatory. As aptly held by this court in IGIRIGA VS. BASSEY (Supra):
A writ issued without the Registrar’s seal is incompetent and cannot be cured. Where the word shall is used in any legislation, it means it is mandatory. There is no other meaning that can be ascribed to it. The word shall means that any failure on the part of the Registrar to seal the writ of summons, invalidates the writ. A writ unlike other processes is an originating Court process and it requires the Registrars seal. NNPC VS. ELUMA (1997) 3 NWLR (Pt. 492) 195; BBN OLAYIWOLA (2001) 6 WRN PAGE 141.
As alluded to above, contrary to the submission of the 1st and 2nd Respondent? learned silk, the failure to affix the seal on the originating summons does not amount to mere irregularity. The duty of affixing a seal on an originating process such as the original summons in the instant case, is a condition precedent, thus a mandatory requirement of the law. See Order 6 Rule 2 (1) of the Kwara State High Court (Civil Procedure) Rules 2005 (Supra).
As aptly postulated in MADUKOLU VS. NKEMDILIM (Supra), a Court is competent to entertain, hear and determine a matter before it, when:
(3) The case comes before, the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however, well conducted and decided; the defect is extrinsic to the adjudication.
The phrase, by the ‘due process of law’, as couched in Bairamian, FJSC’s dictum in MADUKOLU VS. NKEMDILIM (Supra) bears eloquent connotation much the same as the British Parliament first used the phrase way back in the year 1354 in the statute of 28 Echv.m CAP. 3:
That no man of what estate or condition that he be, shall be put out of land or tenement nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of the law.
See Lord Denning, MR; The Due Process of Law Oxford University Press Reprinted 2012 @ V:
So by ‘due process of law’ I mean the measures authorized by the law so as to keep the streams of justice pure: to see that trials and inquiries are fairly conducted; that arrests and searches are properly made; that lawful remedies are readily available; and that unnecessary delays are eliminated.
In the circumstance, the first issue ought to be, and it’s hereby resolved in favour of the Appellants.
ISSUE NO. 2
The second issue raises the question of whether the Court below was not wrong when it failed to consider and pronounce on the issue of its jurisdiction to entertain the 1st and 2nd Respondents’ suit raised before it when from the uncontroverted facts contained in the counter affidavit of the Appellants against the motion and the argument canvassed before the Court, the 1st and 2nd Respondents lack the locus standi to initiate and/or continue the prosecution of the case which defect renders the suit incompetent and deprived the Court of the requisite jurisdiction to entertain or continue to entertain the same. The second issue is distilled from grounds 1 and 3 of the notice of appeal.
The issue of jurisdiction vis–vis competence of a Court to entertain and adjudicate upon any matter before it is crucial. Indeed, it is most fundamental. As such, whenever the jurisdiction of a Court is vehemently challenged or questioned as in the instant case, the Court has an onerous duty not only to the party but to itself, to first and foremost deal with it before venturing in to the substantive case or issue on the merits. It is trite, that an objection to the jurisdiction or competence of a Court can be raised at any stage of the proceedings, by the parties, the trial or appellate Court. It can even be raised suo motu by the Court itself, albeit with the caveat that the parties must be accorded every opportunity to address the Court before making a decision there upon. See NDIC VS. CBN (2002) 3 SCI UWAIFO JSC @ 9; NIKA FISHING CO. LTD VS. LAVINA CORP (2008) ALL FWLR (Pt. 437) 1 @ 15; UGWU VS. PDP (2013) LPELR 21356, @ 57 – 88; INAKOJU VS. ADELEKE (2007) ALL FWLR (Pt. 353) 3 @ 8.7.
In the instant case, it’s obvious from the record of appeal, especially at page 220, paragraphs 7 (ix) and (x) of the Appellants’ counter affidavit and page 341 of the Record, lines 1 – 4 and 6 – 8 of the Appellants’ counsel written address, the issue of jurisdiction had been raised in regard to lack of Locus Standi of the 1st and 2nd Respondents to initiate and maintain the instant action. Equally obvious on the record at pages 343 ? 348, the Court failed to consider and pronounce on the very vexed fundamental question of jurisdiction to entertain and determine the action as presented by the 1st and 2nd Respondents.
Yet the provisions of the 3rd Appellants’ Constitution is very much clear and emphatic regarding the fact that the 1st and 2nd Respondents grossly lack the locus standi to institute the action. Most particularly, Article 21 (D) (V) of the 3rd Appellant’s constitution provides:
Any member who files an action in Court of law against the party or any of its officers on any matter or matter relating to the discharge of the duties without exhausting the avenue for redress provided for in this Constitution shall automatically stand expelled from the party on filing such action.
The provision of the above Article 21 (D) (V) is clear and unambiguous, thus ought to be accorded the literal interpretation it deserved. See INEC VS. AC (2007) LPELR 9028, @ 17 – 18; ENANG VS. UMOH (2012) LPELR ? 8386.
In the case of AMAECHI VS. INEC (2008) LPELR 446 @ 57, it was aptly held by the Apex Court that the provisions of a political party strictly bind both the party and the individual members thereof. See also CHINWO VS. OWHONDA VS. AWUNI (1997) 7 SCNJ 1 @ 19.
In OWOSENI VS. FALOYE (2005) 7 SC (Pt. 11) 79, the Apex Court aptly asserted:
It is important to stress that the laws which prescribed that some procedural steps be taken to resolve a dispute before embarking on actual litigation are not and cannot be treated or categorized as ousting the jurisdiction of the Court.
Per Oguntade, JSC @ 140.
Unarguably, the provision of Article 21 (D) (V) of the 3rd Appellant’s Constitution is fundamentally a condition precedent, which ought to have been complied with by the 1st and 2nd Respondents before filing the instant action.
It’s aptly held in ORAKUL RESOURCES LTD VS. NCC (2007) ALL FWLR (Pt. 390) 1487 @ 1506:
Where a condition precedent for doing an act has not been complied with, no subsequent act thereto can be regarded as valid? The non-closing of such thing renders the subsequent act void.
Interestingly, the 1st and 2nd Respondents’, for reasons best known thereto, failed to controvert the facts deposed to in the Appellants’ counter affidavit against the motion for amendment most, especially paragraphs 3 and 7 (ix) and (x) thereof. See AJOMALE VS. YADUAT (No.2) (1991) 58 CNJ 172 @ 178.
In the circumstance, the second issue ought to be, and same is hereby resolved in favour of the Appellants.
ISSUE NO. 3
The third issue raises the vexed question of whether the Court below was not wrong in holding that the application for amendment as constituted was in compliance with Order 28 Rule 1 of the Kwara State High Court (Civil Procedure) Rules, 2005 and same was therefore competent and grantable when the said application did not state/show/demonstrate/delineate and outline the areas and extent of the proposed amendments. The third Issue is distilled from Ground 4 of the Notice of Appeal.
Instructively, at page 347 of the Record, the Court below held inter alia to the conclusive effect:
Having gone through the amendment sought, I am of the view that it is related to the claimants/applicants cause of action and it will assist the Court in the just determination of the case? I find that the counter affidavit of the
Respondents dwells majorly on the issues to be canvassed at the substantive case.
Accordingly, I hold that the application is meritorious and same is granted as prayed.
The 1st and 2nd Respondents’ motion for amendments is contained at pages 193 – 195 of the Record. On the face of the Record at page 194, it is prayed for:
1. LEAVE AND ORDER of this Honourable Court granting leave to the Claimant/Applicants to amend their original Originating Summons and other accompaniments in this case in line with the proposed amendments attached herein as Exhibit A.
Most ironically, however, there is nowhere in any of the 7 paragraphs of the Affidavit in support of the said motion (pages 196 – 177 of the Record) the purported Exhibit A has been alluded to or even attached to the affidavit. It is however contained at pages 370 – 376 of the Additional Record of Appeal.
Having critically, albeit dispassionately, considered the proposed Amended Originating Summons (pages 370 – 376 of the Additional Record), I uphold the contention of the Appellants to the effect that 1st and 2nd Respondents have not in any form or manner shown or clearly indicated what they actually proposed to amend in the existing Originating Summons and the affidavit in support thereof. The proposed amendments have not been delineated as required by the rules of Court. See IMIE VS. POPOOLA (2008) ALL FWLR (Pt. 416) 1975 @ 1985. DIAH VS. BONGO (2015) LPELR 2603.
In the circumstance, the Court below was undoubtedly, in error when it held to the conclusive effect that the application of the 1st and 2nd Respondents for amendment of the Originating Summons was in compliance with Order 28 Rule 1 of the Kwara State High Court Rules (Supra). Therefore, the third Issue ought to be and it is hereby resolved in favour of the Appellants.
ISSUE NO. 4
The fourth and last Issue raises the vexed question of whether the Court below was not wrong in granting the application for amendment when the proposed amendments are not related to the 1st and 2nd Respondents’ cause of action and not founded on any known legal right or justiciable cause of action against which the 1st and 2nd Respondents can complain under the Constitution of the 3rd Appellant and before the Court, more so, that the amendments have the at taking the case outside the purview of the jurisdiction of the Court below as a State High Court. The fourth Issue is distilled from Grounds 5, 6, and 7 of the Notice of Appeal.
It is trite, that a party may amend the originating process and pleadings thereof at any time before judgment is delivered by the Court seized with the matter. However, the Court in exercising its discretion to grant such an application must do so not only judicially but also judiciously, having regard to the facts and circumstances surrounding the case, as a whole. See NDIC VS. JACKSON DEVOS LIMITED (2014) LPELR 23378; SUFIANU VS. ANIMASHAUN (2000) 14 NWLR (Pt. 688) 650 (2000) LPELR 6929.
By the provisions of Article 3.4 and (XIV) of the 3rd Appellants’ Constitution, it is crystally obvious that the State Executive of the 3rd Appellant, the 1st and 2nd Respondents, does not have any power or legal right in regard to nomination process of the 3rd Appellant’s candidates for elections into the office of the President, Governor and Members of the National and State Assemblies. See YAR’ADUA VS. YANDOMA (2014) 12 SC (Pt. 111) 64 @ 129; AC VS. INEC (2007) 6 SC (Pt. 11) 212 @ 265, 272 – 273; EMEKA VS. OKADIGBO (2012) 7 SC (Pt. 1) @ 41; et al.
A party in Nigeria by its nature is characteristically national in its outlook, as it is a distinct corporate entity from which there are branches or chapters at the States, Local Governments and Wards. See ABEGUNDE VS. THE ONDO STATE HOUSE OF ASSEMBLY (2015) 4 ? 5 SC (Pt. 1) @ 57.
What is more, by the proposed amendment to the Originating Summons in question which hitherto was non-existent at the date of the Originating process, a new cause of action cannot be introduced there in to. See CBN VS. DINNEH (2005) LPELR ? 11349 @ 23.
It is equally obvious from reliefs 6, 9, 10 and 13 of the proposed amended Originating Summons (pages 370 ? 376 of the Additional Record) and the Amended Originating Summons (pages 229 – 234) of the Record, the said prayers or reliefs have taken out the jurisdiction of the Court below being a State High Court. The reason being that by virtue of Section 251 (1) (r) of the 1999 Constitution as amended, the Court below lacks the jurisdiction to entertain any matter against INEC which is a Federal Agency in regard to matters within its statutory administrative functions. This means that some aspects of the subject matter of the suit are no longer within the jurisdictional constitutional limits and competence of the Court below. See OYAKHIRE VS. NEKAJ (2000) LPELR 60443 @ 21; BALONWU VS. OBI (2007) LPELR 4255 @ 26. AG BENUE VS. UMAR (2007) LPELR 8076, @ 33 – 34.
In the circumstance, the 4th issue ought to be, and same is hereby resolved in favour of the Appellants.
Hence, against the backdrop of the far-reaching foregoing postulations, and having effectively resolved all the four issues raised herein in favour of the Appellants, the appeal resultantly grossly succeeds, and it is hereby allowed by me.
Consequently, the ruling of the High Court of Kwara State, delivered on October 24, 2018 in Suit No. KWS/292/2018, by T.S. Umar J., is hereby set aside. The said Suit No. KWS/292/2018, having been adjudged to be incompetent, is accordingly hereby struck out.
Parties shall bear their respective Costs of litigation.
IBRAHIM SHATA BDLIYA, J.C.A.: I have had a preview of the leading judgment just delivered by IBRAHIM MOHAMED MUSA SAULAWA, JCA. I am in full agreement with the reasoning and conclusion arrived at in allowing the appeal. I have nothing useful to add to the erudite judgment, other than to adopt my lord’s reasoning and conclusion and to allow the Appeal, and consequently strike out the suit before the lower Court.
I abide by the order made on costs.
HAMMA AKAWU BARKA, J.C.A.: I was privileged to have read in draft the lead judgment of my learned brother Ibrahim Mohammed Musa Saulawa JCA, just delivered. I am totally in agreement with the reasoning and conclusion reached to the effect that the Originating process with respect to suit No. KWS/292/2018 filed before the lower Court, was defective and resultantly incompetent. The incompetency of the originating summons by implication affected the jurisdiction of the lower Court rendering void all the proceedings and orders dealt therein of no effect, null and void. It is trite law that where a statute specifically stipulates the manner in which any action should be commenced or initiated in relation to specified reliefs, it is only the commencement of an action by such process that is allowed. See CC (Oil and Gas) Co. Sal. Vs. Masiri (2011) 3 NWLR (pt. 283)xxx. In other words, the failure of the respondent to have the originating process to be sealed by the registrar of Court as required by statute, robbed the lower Court of the jurisdiction to entertain the plaintiffs complaint.
This is because the failure to have the originating process sealed as required by statute is not a mere irregularity which is curable but a fundamental step which where not adhered to renders the entire originating process incompetent. The case of Igiriga vs. Bassey (2013) LPELR CA/C/174/2009 is apt, and still remains good law on the issue. My Lord attended to all the issues canvassed to my satisfaction and I have no hesitation adopting same as mine. The resolutions of the issues canvassed are agreeable to me, to the inescapable conclusion that the appeal is endowed with immense merit and thus resulting in allowing same. Hence all the issues having been resolved in favor of the appellant, I join my Lord in allowing the appeal, and consequently striking out the action before the lower Court on the ground that same was incompetent. I abide on all orders made including that as to costs made in the lead judgment
Appearances:
Chief Akin Olujinmi, CON, SAN with him, Ayinla Jawondo Salman, Esq., Kamaldeen Gambari, Esq., Ahmed Akanbi, Esq. and Abayomi Balogun, Esq.For Appellant(s)
Yusuf Ali, SAN for the 1st and 2nd Respondents.
Ayodeji Akerele, Esq. for the 3rd Respondent.
Lawal Victor Jimoh, Esq. for the 4th RespondentFor Respondent(s)
