ALL PROGRESSIVE CONGRESS & ORS v. MR. EMMANUEL KEM OKI & ORS
(2019)LCN/13020(CA)
In The Court of Appeal of Nigeria
On Thursday, the 4th day of April, 2019
CA/B/07/2019
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1) ALL PROGRESSIVE CONGRESS (APC)
2) COMRADE ADAMS OSHIOMHOLE
(THE NATIONAL CHAIRMAN, ALL PROGRESSIVE CONGRESS (APC)
3) HON MAIMALA BUNI
(THE NATIONAL SECRETARY, ALL PROGRESSIVE CONGRESS (APC) Appellant(s)
AND
1) MR. EMMANUEL KEM OKI
(STATE WELFARE SECRETARY)
2) MR. AMABIRI AZORBO PAUL
(CHAIRMAN, BOMADI LOCAL GOVT. AREA)
ALL PROGRESSIVE CONGRESS)
3) CHIEF JIMINYEVWEN DIGBAME UBU
(CHAIRMAN, UGHELLI SOUTH LOCAL GOVT.
AREA, ALL PROGRESSIVE CONGRESS)
4) ELDER LEWIS ODIGWE
(CHAIRMAN, NDOKWA WEST LOCAL GOVT.
AREA, ALL PROGRESSIVE CONGRESS)
5) INDEPENDENT NATIONAL ELECTORAL
COMMISSION (INEC) Respondent(s)
RATIO
WHETHER OR NOT OBJECTIONS TO THE JURISDICTION OF A COURT SHOULD BE TAKEN FIRST BEFORE HEARING THE CASE ON MERITS
It is true and it is trite law that objections to the jurisdiction are to be taken first before proceeding to hear the case on merits. See FBN PLC V T.S.A. INDUSTRIES (2010) 15NWLR (PT. 1216) 247; USMAN DAN FODIO UNIVERSITY V. KRAUS THOMPSON ORGANISATION LTD (2001) 15NWLR (PT.736) 305; UGO ?NGADI V FRN (2018) LPELR ? 43903 (SC).
But when there are facts which are crucial to the determination of the point of law the disputed facts have to be resolved first. See EXXON MOBIL CORPORATION 5959 LAS CONILAS BOULEVARD IRVING TEXAS (USA) V ARCHIANGA (JP) & ORS (2018) LPELR ? 44979 (SC). PER AWOTOYE, J.C.A.
WHETHER OR NOT CONSENT ORDER OBTAINED BY FRAUD CAN BE SET ASIDE BY THE COURT THAT DELIVERED IT
It is equally trite law that a consent order obtained by fraud could be set aside by the Court that delivered it or another Court of competent jurisdiction. See RACE AUTO SUPPLY CO LTD & ORS V. AKIB (2006) 13NWLR PART 997 p. 373; AFEGBAI V. A.G. EDO STATE & ANOR (2001) 14NWLR PART 733 p.425. PER AWOTOYE, J.C.A.
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the appellants who were the 1st?3rd Defendants at the lower Court.
The claim of the claimants at the lower Court read thus:
?A DECLARATION that CHIEF CYRIL ABEYE OGODO is validly elected Delta State All Progressive Congress (APC) Chairman, having been duly elected at the Delta State Congress held at the College of Education (Technical), Asaba, Delta State, on Monday, the 21st day of May 2018.
A DECLARATION that the All Progressive Congress (APC) Delta State Congress held at the College of Education (Technical), Asaba on Monday, 21st May 2018 is the only authentic and valid State Congress of the All Progressive Congress (APC) in Delta State.
A DECLARATION that the purported All Progressive Congress (APC) Delta State Congress Purportedly held on Saturday, 19th May, 2018, not having the blessing of the All Progressive Congress (APC) is illegal, null and void ab initio.?
A DECLARATION that the Ward and Local Government Areas All Progressive Congress (APC) held on the 5th and 12th day of May
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2018 under the Chairmanships of Hon. Emmanuel Chinda and approved by the National Working Committee is the only recognized Executives of the Party for Wards and Local Government Area in Delta State All Progressive Congress (APC), same having been sworn in and assumed duty.
AN ORDER of perpetual injunction restraining the 1st ? 3rd Defendants whether by themselves, their agents, servants or howsoever called from recognizing and/or swearing?in any other State Executive of the All Progress Congress (APC), Delta State, apart from that Chaired by CHIEF CYRIL ABEYE OGODO and his members, into office.
AN ORDER of perpetual injunction restraining the 4th Defendant whether by itself, its agents, servants or howsoever called recognizing and/or dealing with any other State Executive of the All Progress Congress (APC), Delta State, apart from that Chaired by CHIEF CYRIL ABEYE OGODO and his members.?
The Appellants had filed a motion on notice on 9/7/2018 challenging the jurisdiction of the lower Court to entertain the Respondents? suit in the following terms:
1. ?AN ORDER setting aside the ex parte order for leave to
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issue and serve the 1st -3rd Defendants/Applicants by substituted means outside the jurisdiction of this Court made on the 2nd day of July 2018 and service effected pursuant thereto.
2. AN ORDER setting aside the interim made on the 2 July, 2018 against the 1st?3rd Defendants/Applicants in this suit.
3. AN ORDER of this honourable Court striking out and/or dismissing the plaintiffs? suit for want of jurisdiction/competence.
4. AN ORDER dismissing this suit for being an abuse of Court process and
5. AN ORDER of this Honourable Court dismissing the Suit in limine for want of competency.?
After hearing the parties on the objection the learned trial Judge held inter alia thus:
?I appreciate the fact that whenever the issue of jurisdiction is raised in any proceedings, it must be dealt with first before any further step is taken, it must also be noted that Court must resist the temptation of making any pronunciation on the main issue for determination in interlocutory proceedings.
In view of the above, I chose a middle course and that is the Court will reserve its ruling, hear from the parties and give
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judgment together with the ruling at the same time. This is to avoid any pit falls earlier mentioned and to also order accelerated hearing.?
Miffed by the above decision the Appellants filed Notice of Appeal challenging it on 3 grounds.
GROUND 1
The learned trial judge erred in law when he failed to consider on merit, the Appellants? Motion on Notice filed on 9th July, 2018 wherein the jurisdiction of the lower Court was challenged even after arguments of all parties have been taken by the lower Court.
PARTICULARS OF ERROR
I. The Appellants had challenged the jurisdiction of the lower Court to hear and determine the substantive suit on the ground that due process of law was not followed in the commencing the suit, conditions precedent to the commencement of the suit were not observed, the mode of service of originating processes was not in accordance to the law, lack of locus standi on the part of the Claimants (herein referred to as Respondents), the subject matter of the suit had earlier been dealt with in Suit No: FHC/ABJ/CS/509/2018 and judgment delivered on 19th June, 2018 (issue estoppel).
II. It is settled law
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that issue of jurisdiction when raised must be resolved before any other issue can be entertained in the same suit. The learned trial judge heard the appellants? Motion on Notice filed on 9th July 2018 which was premised majorly on the jurisdiction of the lower Court but the lower Court in its ruling delivered on 20th December 2018 reserved its ruling till the substantive issues are considered thereby refusing to make any pronouncement on the issue of jurisdiction raised by Appellants.
III. The learned trial judge failed to direct his mind toward the facts that he could not consider the merit of the suit without the requisite jurisdiction and whatever done without jurisdiction is null and void.
GROUND 2
The learned trial judge erred in law when his lordship held that trial should proceed despite the application of the Appellant challenging the jurisdiction of the Court to entertain this suit.
PARTICULARS OF ERROR
I. The Appellants herein has filed a Motion of Notice challenging the jurisdiction of the trial Court to entertain the suit of the 1st?4th Respondents and has raised the objection timeously.
II. His
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lordship of the lower Court in his ruling ignored the application challenging the Court?s jurisdiction and ordered the hearing of the substantive suit.
III. That based on the judgment of the 19th June 2018 in suit no. FHC/ABJ/CS/509/2018 the 1st ? 4th Respondents herein are not members of the executives of the 1st Appellant in Delta State.
GROUND 3
The learned trial judge of the lower Court erred in law when His Lordship held that he would reserve his ruling on the Appellants? Preliminary Objection and deliver judgment together with the ruling at the same time, despite the glaring abuse of Court processes before the lower Court.
PARTICULARS OF ERROR
I. The preliminary objection of the Appellants? touches on the jurisdiction of the trial Court to hear and determine the suit of the 1st?3rd Respondents herein.
II. The suit of the 1st-4th Respondents was instituted at the trial Court by a Writ of Summons which requires a full trial and not by originating summons which is determined by affidavit evidence.
?III. The subject matter of the suit of the 1st-4th Respondents before the lower Court
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had already been determined by coordinate Court competent jurisdiction, i.e. the Federal High Court holding at Abuja before His Lordship, Honourable Justice A.I. Chikere in Suit No: FHC/ABJ/CS/509/2018 on the 19th of June, 2018.
IV. That the judgment of 19th June 2018 is yet to be set aside.
V. That Supreme Court had in the case of GARBA V. OMOKHODION (2011) 15NWLR (PT. 1269) 145 held that where preliminary objection touches on the jurisdiction of the Court, it is imperative on the Court to hear and determine the issue of jurisdiction first.?
After transmission of record of appeal to this Court parties filed and exchanged briefs of argument.
APPELLANT?S BRIEF OF ARGUMENT
The Appellants? Brief of Argument was settled by Chief Adeniyi Akintola SAN, FCIArb for the 1st to 3rd Appellants and filed on 30/01/2019 challenging the ruling of the Delta State High Court, Kwale Division on the 20/12/2018 where the Court erroneously held that it would reserve its ruling on the issue of jurisdiction raised by the Appellants in their Preliminary objection and proceed to hear the substantive Suit brought before it by the
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Respondents.
Learned Senior advocate formulated one sole issue for determination in this appeal thus;
ISSUE ONE
Whether the decision of the trial Court to reserve its ruling on the issue of jurisdiction raised by the appellants and then proceed to hear the respondents? substantive suit is right and/or proper in law having regard to the well settled position of the law on jurisdiction being a threshold issue that ought to be determined or resolved first once raised in a pending proceeding before the Court proceeds further in the matter.
The Learned Senior Advocate to the Appellants argued that while His Lordship appreciated the fact that when issue of jurisdiction was raised at any time in a proceeding, all other issues stood still until the issue of jurisdiction is fully determined. In his pronouncement, the Court however erroneously jettisoned that position of law and went further to reserve the ruling on jurisdiction to hear the full matter.
Learned Senior Counsel submitted that the pronouncement of the trial Court in its ruling of 20/12/2018 to keep his decision on the issue of jurisdiction in abeyance and still after the
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parties have proved their respective cases, runs counter to the well established and laid down principle of law, that once the issue of jurisdiction is raised, it must be determined timeously.
Learned Senior Counsel submitted that it is the law that gives jurisdiction to the Court and it is a mandatory duty on Court to determine whether or not it has authority to hear an issue before doing anything in furtherance of that authority. He further submitted that jurisdiction though very elementary, howbeit very crucial, that the Court must possess the necessary jurisdiction before hearing and determining a suit for where a Court lacks jurisdiction, then it cannot sit to adjudicate over the suit before it. He relied on the case of CBN V OKOJIE (2015) 14 NWLR (PT 1479) Pg. 231 @ Pg 252, Para D ? 2 and the case of JAMES V INEC (2015) 12 NWLR (PT. 1474) Pg. 538 @ Pg 576 -577.
Learned Senior Advocate urged the Court to rectify the error made by the trial Court in the interest of substantial Justice and allow the Appeal while setting aside the decision of the trial Court.
RESPONDENT BRIEF OF ARGUMENT
The 1st-7th Respondents Brief of Argument
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was prepared by Chief F.T. Obigbor their counsel and filed on 7/02/2019. Learned Counsel adopted the sole issue as distilled by Learned Senior Counsel for appellants with minor modification.
Whether the trial judge erred in law and came to a perverse decision when after hearing arguments both in support and in opposition held as follows:
I choose a middle course and that is the Court will reserve its ruling, hear the parties and give judgment together with the ruling at the same time?I therefore reserve my ruling for the reason stated above, parties shall be allowed three days each to present their case especially as it is election related matter.?
Learned Counsel argued that what was being challenged is the discretion of the trial judge to take a middle course in order to expedite action and not also to delve into the substantive suit in the course of giving its ruling which amounts to mixed law and facts, more so, that the appeal is interlocutory and requires the appellants to first seek and obtain leave of the lower Court or of the appeal Court in exceptional cases and failure to first obtain leave by appellants
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renders the appeals a nullity.
Learned Counsel submitted that it was desirable to take interlocutory issues together with substantive suit in order to save time and referred the Court to the case of PDP V ABUBAKAR (2007) 2 NWLR (PT 1018) 303@ 391, Para. D-G.
Learned Counsel concluded that leave of Court was required in an interlocutory appeal, the Appellants having failed to comply with the condition precedent, the resultant effect is that the appeal is bound to fail and urged the Court to so hold and dismiss this appeal with excruciating cost.
APPELLANTS REPLY BRIEF
Learned Appellant?s Counsel filed their reply on 19/2/19 and submitted that the Respondent?s objection to the appeal on the ground that the Appellants did not first seek and obtain leave to appeal before filing a notice of appeal was misconceived and humbly referred the Court to the motion on notice dated 30/01/19 filed before this Honourable Court otherwise known as trinity prayers.
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Learned Senior Counsel further submitted that the inadvertent omission of the Appellants to seek leave before filing notice of appeal in an interlocutory appeal that was of mixed
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law and facts could be regularized. He referred the Court to the case of NALSA & TEAM ASSOCIATES V NNPC (1991) 8NWLR (PT 212) 652 @ 676, Para. D?F and SOUTH ATLANTIC PETROLEUM LTD V MINISTER OF PETROLEUM RESOURCES (2014) 4 NWLR (PT 1396) 24 @ 41, Para. E-F.
Finally, Learned Senior Counsel submitted that objection on jurisdiction could be raised at any stage in a proceeding, the issue of jurisdiction must first separately be determined before any further step(s) could be taken and urged the Court to allow this appeal.
RESOLUTION
I have carefully gone through the submissions of learned counsel on all sides as well as the contents of the record of appeal.
It seems clear to me that the issue in this appeal and that of CA/B/08/2019 and CA/B/08A/2019 being sister appeals are tied to the same apron string and share similar destiny. This judgment shall therefore abide the decision in the other sister appeals.
In Appeal No: CA/B/08/2019;APC & ANOR V GHAGHARA OCHUKO WISDOM & ORS in the lead judgment held as follows:
?I shall adopt the sole issue as framed by learned Senior Counsel for appellants in this
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judgment.
I have deeply considered the arguments of counsel on both sides and the contents of the Record of Appeal.
In resolving this sole issue it is pertinent to ask oneself what essentially is the claim of the claimants at the lower Court and what is the nature of the preliminary objection of the Defendants?
In essence it is on the proceeding of the Federal High Court in Suit No. FHC/ABJ/CS/509/2018 BETWEEN ODJEBOBO DESIRE ONAYEFEME AND OTHERS VERSUS NATIONAL CHAIRMAN ? APC AND OTHERS and the terms of settlement and default judgment obtained in the said proceeding at the said Federal High Court. (see paragraphs 32 -40 of the Joint Statement of Claim).
The 1st and 2nd Defendants (now appellants) joined issues with the claimant on paragraph 32 -40 asserting that the consent judgment terms of settlement were validly obtained as the consent of the National Chairman of the party was obtained before signing the terms of settlement. See paragraphs 19 and 20 of 1st and 2nd Defendants Statement of Defence.
The Preliminary Objection of the appellants at the lower Court hinges on the validity of the consent judgment obtained in
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FHC/ABJ/CS/509/2018 delivered o 19/6/2018.
The judgment in FHC/ABJ/CS/509/2018 which is the pillar on which the appellants? preliminary objection rests is what the claimants want the lower Court to set aside.
It seems clear to me that the resolution of the disputed facts (joined issues) in the pleadings is crucial to the determination of the objection of Learned Senior Counsel to the appellants. Was the consent judgment obtained by fraud or validly obtained? The fulcrum on which the entire case at the lower Court turns depends on the resolution of some of the disputed facts which are closely intertwined with the points of law being raised by the parties.
It is true and it is trite law that objections to the jurisdiction are to be taken first before proceeding to hear the case on merits. See FBN PLC V T.S.A. INDUSTRIES (2010) 15NWLR (PT. 1216) 247; USMAN DAN FODIO UNIVERSITY V. KRAUS THOMPSON ORGANISATION LTD (2001) 15NWLR (PT.736) 305; UGO ?NGADI V FRN (2018) LPELR ? 43903 (SC).
But when there are facts which are crucial to the determination of the point of law the disputed facts have to be resolved first.
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See EXXON MOBIL CORPORATION 5959 LAS CONILAS BOULEVARD IRVING TEXAS (USA) V ARCHIANGA (JP) & ORS (2018) LPELR ? 44979 (SC).
It is equally trite law that a consent order obtained by fraud could be set aside by the Court that delivered it or another Court of competent jurisdiction. See RACE AUTO SUPPLY CO LTD & ORS V. AKIB (2006) 13NWLR PART 997 p. 373; AFEGBAI V. A.G. EDO STATE & ANOR (2001) 14NWLR PART 733 p.425.
If the claimant seeks the lower Court to set aside the consent judgment in FHC/ABJ/CS/509/2018 but the factual basis on which the prayer of the claimant is seeking its setting aside is being disputed by the respondent it does not seem right and in the interest of justice to allow the Respondent to use that same judgment to challenge the jurisdiction of the lower Court.
The disputed facts have to be resolved.
I am therefore in agreement with the learned trial judge when he reserved the ruling on the issue of jurisdiction raised by the appellants and proceeded to hear the substantive Suit.
I resolve the sole issue in favour of the Respondents.” In line with the decision of this Court in Appeal NO. CAB/08/2019, I
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hold that this appeal lacks merit it is accordingly dismissed. suit No. HCK/56/2018 APC & ANOR V EMMANUEL KIM & ORS is hereby remitted back to the trial Court for conclusion of the trial. N250,000 cost in favour of the 1st?7th Respondents.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother TUNDE OYEBANJI AWOTOYE JCA in respect of this interlocutory appeal. I agree with the reasoning and conclusion that indeed this appeal lacks merit and should be dismissed. I concede that ordinarily the issue of jurisdiction be settled one way or another before the substantive issues in controversy since the proper jurisdiction donates power to a Court to hear any matter. However in this case, even though it is not strictly speaking a pre-election matter within the contemplation of S. 285 (14) of the 1999 Constitution (as amended), as none of the parties is a candidate at an election, it is election related and a pre-primary matter. Thus, time is of essence in deciding all the issues thrown up by the parties. The current conventional wisdom is that in such matters,
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interlocutory appeals even on matters of jurisdiction are discouraged since all the issues in controversy including the challenge to the issue of jurisdiction can be decided at the end of hearing the claims of the parties. In the peculiar circumstances of this case, the facts in dispute particularly relates to the validity of the A.P.C Delta State Congress and which particular party officials constitute the proper persons to conduct party congress, which would eventually have the authority to conduct valid primaries for the nomination of party candidates at the election. The question of whether the trial Court has jurisdiction and the contentious facts before the trial Court can be determined together in the final substantive judgment of the trial Court. Suit No. HCK/56/2018: A.P.C. & Anor v. Emmanuel Kim & Ors. is hereby remitted back to the trial Court for conclusion of the trial.
Appeal Dismissed. I abide by the order as to costs.
PHILOMENA MBUA EKPE, J.C.A.: I had the advantage of reading before now, the judgment delivered by my learned brother, TUNDE OYEBANJI AWOTOYE, JCA.
?I am in entire agreement with the
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reasoning therein and the conclusion arrived at that this appeal lacks merit and deserves to be dismissed. suit No. HCK/56/2018 APC & ANOR V. EMMANUEL KIM & ORS is hereby remitted back to the trial Court for conclusion of the trial. N250,000.00 cost in favour of the 1st?7th Respondents.
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Appearances:
Chief Adeniyi Akintola SAN with him, Oladele Oyelami Esq., O.O. Samuel Esq. and Lucky Ajokperiniovo Esq.
For Appellant(s)
F.I. Obigbor with him, C.a. Akpe Esq., for 1st – 4th Respondents
E.R. Emukpoeruo for 5th Respondents.For Respondent(s)
Appearances
Chief Adeniyi Akintola SAN with him, Oladele Oyelami Esq., O.O. Samuel Esq. and Lucky Ajokperiniovo Esq.For Appellant
AND
F.I. Obigbor with him, C.a. Akpe Esq., for 1st – 4th Respondents
E.R. Emukpoeruo for 5th Respondents.For Respondent
