ALL PROGRESSIVES CONGRESS v. HON. GODWIN ETIM JOHN & ORS
(2019)LCN/12900(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of March, 2019
CA/C/70/2019
RATIO
COURT AND PROCEDURE: FUNCTUS OFFICIO
“It is not whether the decision finally disposed of the rights of the parties in the substantive action: IGUNBOR vs. AFOLABI (2001) 11 NWLR (PT 723) 148 and WESTERN STEEL WORKS LTD vs. IRON & STEEL WORKERS UNION (1986) 2 NWLR (PT 30) 617. Without a doubt, the decision of the lower Court that it has jurisdiction concluded the rights of the parties on that issue. The parties can no longer approach the lower Court for anything else on that issue. The lower Court is functus officio on the issue and it is therefore a final decision. In UGO vs. UGO (2017) LPELR (44809) 1 at 20-21, Onnoghen, CJN stated: “Once a Court, in considering an interlocutory application challenging its jurisdiction, comes to the conclusion that it has jurisdiction to hear and determine the substantive matter, that decision is a final decision of the issue of jurisdiction as that Court cannot lawfully revisit the issue again in the same proceeding. The Court thereby becomes functus officio on the issue irrespective of the fact that the decision arose from an interlocutory proceeding. By coming to the conclusion that the Court had jurisdiction to entertain the petition for divorce, it had finally decided the rights of the parties as regards its jurisdiction.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
INTERPRETATION: MEANING OF A CLAIM
“A claim, in our adjectival law originates an action. It is the pivot or cynosure of the case. It sets out the relief or reliefs sought by the plaintiff. A plaintiff is bound by his claim and must not deviate from it willy-nilly. A plaintiff cannot in law present a case different from his claim as the law regards such an unsolicited procedure completely outside the law.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
Between
ALL PROGRESSIVES CONGRESS Appellant(s)
AND
1. HON. GODWIN ETIM JOHN
2. CHIEF FRANCIS EKPENYONG
(For themselves and on behalf of the State Executive Committee of the All Progressives Congress (APC), Cross River State)
3. SIR JOHN OCHALA
4. BISHOP VICTOR EBONG
5. BASSEY ITA Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A.(Delivering the Leading Judgment):
EXORDIUM
This appeal is against the decision of the Federal High Court sitting in Calabar in SUIT NO. FHC/CA/CS/73/2018: HON GODWIN ETIM JOHN & ANOR (for themselves and on behalf of the State Executive Committee of the All Progressives Congress C.R.S.) vs. ALL PROGRESSSIVES CONGRESS & ORS. The parties at the lower Court were the Appellant herein who was the 1st Defendant at the lower Court, the 1st & 2nd Respondents herein who were the Plaintiffs at the lower Court and the 3rd-5th Respondents herein who were the 2nd-4th Defendants at the lower Court. This appeal is one of two appeals arising from the decision of the lower Court in this matter. The other appeal is APPEAL NO. CA/C/62/2019: SIR JOHN OCHALA & ORS vs. HON GODWIN ETIM JOHN & ORS. The Court ordered that the Records in CA/C/62/2019 be also used for the hearing of this appeal. This was on 27th February 2019.
The action at the lower Court was commenced by Originating Summons for the determination of the following questions:
1. Whether upon the proper construction and interpretation of the provisions of Sections 1, 24(a), 6, 257, 287, and 295 of the 1999 Constitution as amended, and Articles 21 (a) (iv) (vi) & (ix) of the 1st defendant?s constitution, the acts of the 2nd-4th defendants and their associates of parading, holding out themselves and posing as the elected state executives of 1st defendant in Cross River State; the forceful entry upon; take over, occupation and retention of the state secretariat Annex of 1st defendant in Cross River State situate at No. 10 Okoi Arikpo Estate, Barracks Road Calabar, in flagrant disregard and disobedience of the orders of Court, is not arbitrary, unconstitutional and void
2. If the answer to the aforesaid issue is in the negative, whether this honourable Court has no disciplinary powers to obviate or undo anything done by 2nd-4th defendants and their Associates in breach of the aforesaid orders of Court, and accordingly grant all the prayers sought herein.?
(See pages 11-12 of the Volume I of the Records in CA/C/62/2019)
Without a doubt, it is evident from the questions presented for determination that the quodlibet related to who, as between the 3rd-5th Respondents and the 1st & 2nd Respondents, were the elected State Executive of the 3rd Respondent in Cross River State and whether the action of the 3rd-5th Respondents in forcibly taking over the State Secretariat Annex of the Appellant in Cross River State was not in disobedience of the order of Court and whether the said acts of disobedience of the order of Court should not be reversed. The 1st & 2nd Respondents claimed the following reliefs:
1. A DECLARATION that under the applicable provisions of the constitution of the Federal Republic of Nigeria, 1999, as amended, the rights of parties and/or citizen can be circumscribed by an injunctive order and every subsisting decision of a Court must be obeyed.
2. A DECLARATION that by the Applicable provisions of the 1999 Constitution the decisions of a High Court, including the High Court of the Federal Capital Territory, Abuja and all other Courts established by the constitution shall be enforced in any part of the federation by all authorities and person and every citizen of Nigeria in under an obligation to obey every subsisting decision of a High Court, until set aside.
3. A DECLARATION that by the Applicable provisions of the 1999 constitution, the order of his lordship Hon. Justice O. A. Musa Judge of the High Court of the Federal Capital Territory Abuja, delivered on the 20th day of September 2018 in suit No. FCT/HC/BW/CV/O6/2018 and motion No. FCT/HC/BW/M/274/2018, by which the defendants were commanded to recognize and deal with the claimants as the lawful State Executives of 1st defendant in Cross River State, remains the subsisting constitutional order regulating the affairs of the defendants in that area in Cross River State.
4. A DECLARATION that the failure of the defendants to obey the decision of his lordship, Hon. Justice O. A. Musa, Judge of the High Court of the Federal Capital Territory Abuja delivered on the 20th day of September 2018 in suit NO. FCT/HC/BW/CV/06/2018; motion No. FCT/HC/BW/M/274/2018, nullifying and setting aside the ward, Local Government, and state congresses conducted by 1st defendant on 21st and 22nd days of August 2018, which purportedly produced the 2nd-4th defendants and Associates as State Executives of the 1st defendant in Cross River State, is an act of impunity and a breach of the 1999 Constitution.
5. A DECLARATION that by a combined interpretation of the applicable provisions of the 1999 Constitution, the constitution of the 1st defendant and the order of his lordship Hon. Justice O. A. Musa Judge, of the High Court of the Federal Capital Territory Abuja delivered on the 20th day of September 2018 in suit No. FCT/HC/BW/M274/2018, it is the claimants, not the 2nd-4th defendants and Associates, who are entitled to hold office as the lawful state executives of the 1st defendant in Cross River State and to take charge, occupy and use the secretariat of the 1st defendant Located at No. 10 Okoi Arikpo Estate Barracks Road Calabar, Cross River State.
6. A DECLARATION that by the combined effect of the applicable provisions of the 1999 Constitution, Article 21 A of the 1st defendant?s Constitution, and the order of his lordship, Hon. Justice O. A. Musa Judge, of the High Court of the Federal Capital Territory Abuja delivered on the 20th day of September 2018 in suit No. FCT/HC/BW/CV/106/2018, motion No. FCT/HC/BW/M274/2018, the forceful entry upon, taking over, occupation and retention of the state secretariat annex of the claimants at No. 10 Okoi Arikpo Estate, Barracks Road Calabar since 21st August 2018, without right, constitute not only the offence of fractionalization made punishable under the 1st defendant?s extant constitution, but also a frontal violation of the 1999 Constitution Act, and therefore illegal and void.
7. A DECLARATION that by the Applicable provisions of the 1999 Constitution and Article 21 (A) of the 1st defendant Constitution, the 2nd-3rd defendants? disobedience of the order of his lordship Hon. Justice O.A. Musa, Judge, of the High Court of the Federal Capital territory Abuja delivered on the 20th day of September 2018 in suit No. FCT/HE/BW/M/274/2018, by way of the advertisement placed by them at page 22 of the Nigeria Chronicle edition of Monday October 1st 2018 wherein in their independence day massage of felicitation to the President and Commander-in-Chief of the Armed forces of the Federal Republic of Nigeria, they had falsely presented, and held out themselves to be chairman and secretary respectively of the 1st defendant in Cross River State, not only violates the constitutional order of the 1st defendant, but is also a flagrant breach of the provisions of the 1999 Constitution and therefore illegal.
8. A DECLARATION that by the combined effect of the applicable provisions of the 1999 Constitution, and all other applicable judicial precedent in Nigeria, all the acts of the defendants complained herein which are in flagrant disobedience to the order of his lordship, Hon. Justice O. A. Musa, Judge, of the High Court of the federal capital territory Abuja, delivered on the 20th day of September 2018 in suit No. FCT/HC/BW/CV/106; motion No. FCT/HC/BW/CV/106; Motion No. FCT/HC/BW/M/274/2018, constitute a flagrant violation of the constitution and therefore illegal and void.
9. AN ORDER of injunction, restraining the 2nd – 4th defendants, by themselves, Associates, servants, agents, privies or consorts forthwith, from further parading or holding out themselves as the lawful State executives of the 1st defendant in Cross River State pending the hearing and determination of suit No. FCT/HC/BW/CV/106/2018 at the High Court of the Federal Capital Territory, Abuja.
10. AN ORDER OF INJUNCTION ordering, commanding or directing 2nd -4th defendants by themselves, their Associates, servants, agents privies or consorts to immediately, vacate the State secretariat Annex of the 1st defendant in Cross River State Located at No. 10 Okoi Arikpo Estate Barracks Road, Calabar.
11. AN ORDER OF INJUNCTION restraining 2nd – 4thdefendants, by themselves, their Associates, servants, agents, privies, or consorts, from ever forcefully entering upon, taking over, occupying, or retaining the State Secretariat Annex of the 1st defendant, in Cross River State, or opening, maintaining or operating any parallel Secretariat or office with the insignia of the All Progressives Congress (APC) or in the name of the said party anywhere in Cross River State, pending the determination of suit No. FCT/HC/BW/CV/106/2018 before the High Court of the Federal Capital Territory, Abuja.
12. AN ORDER directing, commanding and compelling the 1st defendant to immediately invoke the provisions of Article 21 (a) (iv) (vi) & (ix) of its Constitution against the 2nd -4th defendants and their associates for operating an illegal parallel state executive structure of the 1st defendant in Cross River State, contrary to the aforesaid provisions of its constitution, and in violation of the constitution of the Federal Republic of Nigeria, 1999, as amended.
(See pages 8-11 of Volume I of the Records in CA/C/62/2019)
Once again, it is obvious that the reliefs claimed are in respect of who the elected State Executive of the Appellant in Cross River State are, and whether the actions of the 3rd-5th Respondents in holding themselves out as the State Executive and taking over the Secretariat Annex of the Appellant is not in disobedience of the orders of the High Court of the Federal Capital Territory, Abuja; and which actions, being in violation of subsisting orders of Court should be reversed. It is important to underscore, at this outset that the action before the lower Court was in respect of the State Executive (political party officials) of the Appellant. It had absolutely nothing to do with the selection or nomination of a candidate of a political party for election. The case was not about the candidates who were to be sponsored by the Appellant for election. It was about the persons who were members of State Executive of the Appellant in Cross River State. It is instructive in this regard that the 1st & 2nd Respondents maintain the action in a representative capacity for themselves and on behalf of the State Executive Committee of the All Progressives Congress, Cross River State.
The action at the lower Court was contested. The Appellant and the 3rd ? 5th Respondents filed preliminary objections challenging the competence of the action and the jurisdiction of the lower Court to entertain the same. The lower Court heard the preliminary objections together with the substantive Originating Summons and in its judgment; it dismissed the preliminary objections and further entered judgment in favour of the 1st & 2nd Respondents on the merits of the Originating Summons. All the reliefs claimed in the Originating Summons were granted and the lower Court thereafter proceeded to make what it termed ?consequential orders? as follows:
It is also hereby consequentially ordered as follows:
1. The Defendants are to forthwith reverse all steps taken by them in flagrant disobedience of the orders of Court including but not limited to the submission of names of candidates for elective positions in the forthcoming general elections for membership of the Cross River State House of Assembly, House of Representatives and Senate and the Governorship of Cross River State.
2. The Independent National Electoral Commission (INEC) be and is hereby ordered not to recognize or in any manner endorse any step whatsoever taken by the 2nd -4th Defendants purportedly as members of the State Executive Committee of the 1st Defendant in Cross River State including the submission of names of candidates for elective positions in the forthcoming general elections for membership of the Cross River State House of Assembly, House of Representatives and Senate and the Governorship of Cross River State.
3. The candidates for elective positions in Cross River State in the forthcoming general elections for membership the Cross River State House of Assembly, House of Representatives and Senate and the Governorship of Cross River State whose names are submitted by the Defendants to INEC be and are hereby restrained from howsoever or in any manner whatsoever campaigning or doing anything in furtherance of their candidacy in the 2019 General Election.
4. That the order of Justice O. A. Musa of FCT High Court on 20/9/18 which states that any nomination made in disregard of this order shall be void is hereby enforced.
5.It is hereby ordered that all the nominations made and submitted to Independent National Electoral Commission (INEC), by the 1st Defendant is void and the same Independent National Electoral Commission (INEC) is hereby ordered to remove the names of the Candidates of the 2nd -4th Defendants from the list of Candidates to contest for the Election in the forth-coming General Elections for membership of the Cross River State House of Assembly, House of Representatives, Senate and the Governorship of Cross River State of the 2019 General Elections.
6. It is hereby ordered that the National Working Committee of the 1st Defendant and Independent National Electoral Committee (INEC) to receive the list of all Candidates emerged from the Godwin Etim John led State Executive for the 2019 General Elections.?(See pages 150-151 of the Records in CA/C/70/2019)
By the said ?consequential orders? the lower Court transubstantiated the action to one dealing with the nominated candidates of the Appellant for election. The judgment of the lower Court which was delivered on 11th February 2019 is at pages 91-151 of the Records in CA/C/70/2019. The Appellant was dissatisfied with the judgment of the lower Court and appealed against the same on 18th February 2019. The Notice of Appeal is at pages 152-163 of the Record of Appeal in CA/C/70/2019.
The Records of Appeal having been compiled, transmitted and settled, briefs of argument were filed and exchanged as required by the Rules of Court. The Appellant?s brief of argument was filed on 25th February 2019 while the 1st & 2nd Respondents Brief of Argument was filed on 1st March 2019. The Appellant further filed a List of Additional Authorities on 4th March 2019 and a Reply Brief on 12th March 2019. The 3rd-5th Respondents, understandably, since they are the Appellants in CA/C/62/2019, filed their Respondents Brief on 27th February 2019 wherein they conceded the appeal stating that there was nothing to urge in defence of the judgment of the lower Court. Consequently, there is nothing in their said brief to be reviewed or considered in this judgment.
At the hearing of the appeal, learned senior counsel for the Appellant, Mba E. Ukweni, Esq., SAN; A. E. Okpa, Esq., learned counsel for the 1st and 2nd Respondents and E. E. Osim, Esq., of counsel for the 3rd-5th Respondents urged the Court to uphold their respective submissions in the determination of the appeal.
The Appellant distilled five issues for determination as follows:
1. Whether in view of the extant provisions of Section 285(9) of the 4th Alteration to the 1999 Constitution of the Federal Republic of Nigeria, 1999 and Section 87(9) of the Electoral Act, 2010 (as amended), the trial Court had jurisdiction to entertain the 1st & 2nd Respondents? suit? (Ground One)
2. Whether the suit of the 1st & 2nd Respondents at the trial Court was an abuse of Court process and ought to have been dismissed by the trial Court? (Ground Two)
3. Whether the trial Court was right to have awarded the reliefs of the 1st & 2nd Respondents in view of their failure to prove their entitlement to the reliefs? (Ground Three)
4. Whether the Judgment of the trial Court is perverse, considering the suit of the 1st & 2nd Respondents as constituted and evidence adduced during trial? (Grounds Four, Five & Seven)
5. Whether the right to fair hearing of the Appellant was breached by the award of consequential reliefs by the trial Court? (Ground Six)?
On their part, the 1st & 2nd Respondents formulated six issues for determination, namely:
a. WHETHER SECTION 285 (14) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (FOURTH ALTERATION) ACT, CONTEMPLATES SUIT No. FHC/CA/CS/73/2018 in THE LOWER COURT.
b. WHETHER FACTS DEEMED ADMITTED BY APPELLANTS IN THE TRIAL COURT CAN STILL BE SUBJECTED TO THE TEST OF PROOF ON APPEAL.
c. WHETHER THE JUDGMENT OF THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY, ABUJA REGISTERED IN THE LOWER COURT DOES NOT HAVE THE SAME EFFECT AND FORCE IN ALL RESPECTS AS A JUDGMENT OF THE LOWER COURT AS TO GRANT THE LOWER COURT JURISDICTION TO ENFORCE IT.
d. WHETHER THE POWERS AND JURISDICTION OF THE LOWER COURT DOES NOT EXTEND TO ALL INHERENT POWERS AND SANCTIONS OF COURT AS TO EMPOWER IT TO MAKE SUCH CONSEQUENTIAL ORDERS AS IT DEEMS FIT TO MORE EFFECTIVELY ENFORCE THE EXTANT ORDERS OF THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY AND IN ORDER TO PUNISH BAD CONDUCT.
e. WHETHER BY ORDER 2 RULE 16 OF THE JUDGMENT ENFORCEMENT RULES MADE PURSUANT TO THE SHERIFF AND CIVIL PROCESS ACT, ANY PERSON, NOT BEING A PARTY IN A PROCEEDING AGAINST WHOM OBEDIENCE TO ANY JUDGMENT MAY BE ENFORCED, IS NOT BE [sic] LIABLE TO THE SAME PROCESS FOR ENFORCING OBEDIENCE TO SUCH JUDGMENT AS IF HE WERE A PARTY TO THE PROCEEDING.
f. WHETHER THE JUDGMENT OF THE LOWER COURT HAS STRAYED INTO THE DOMESTIC JURISDICTION OF A POLITICAL PARTY.
The 1st & 2nd Respondents further incorporated a preliminary objection to the competence of the appeal in their Respondents Brief. The Appellant in its Reply Brief made its submissions in answer to the preliminary objection and further urged the Court to strike out issue numbers 2, 3, 5 and 6 formulated by the 1st & 2nd Respondents on the ground that they do not emanate from the grounds of appeal. The propriety of the issues distilled by the 1st & 2nd Respondents would be considered, after the consideration and determination of the preliminary objection of the 1st & 2nd Respondents.
THE PRELIMINARY OBJECTION
The of the preliminary objection is as follows:
PRELIMINARY OBJECTION
TAKE NOTICE that Respondents shall at the hearing of this appeal challenge the competence of Appellant?s Notice and grounds of Appeal and the brief of argument filed 25th February 2019 upon the following grounds:
i. Appellant ground 1, 2, 5 questioned the decision of the trial Court dismissing the interlocutory applicant [sic] of the Appellants without seeking leave from the trial Court or this Honourable Court as required by Section 22 of the Court of Appeal Act and Section 242 of the Constitution of the Federal Republic of Nigeria.
ii. The grounds of appeal involve questions of [sic]
iii. Issues facts 1, 2 and 4 are incompetent grounds of appeal.
The pith of the contention of the 1st & 2nd Respondents in the preliminary objection is that grounds 1, 2 and 5 of the Notice of Appeal are in respect of the interlocutory decision of the lower Court wherein it dismissed the preliminary objection filed by the Appellant. It was stated that being an interlocutory decision, leave of Court was required, pursuant to Section 22 of the Court of Appeal Act and Section 242 of the 1999 Constitution, to appeal against the same.
It was further posited that the grounds of appeal involve questions of facts and that the decision of the lower Court dismissing the preliminary objection and upholding its jurisdiction to entertain the matter is interlocutory and an appeal can only be filed with leave of Court. The cases of AKINSANYA vs. UBA LTD (1986) 4 NWLR (PT 35) 273 at paragraph C-D and BOZSON vs. ALTRINCHAM UDC (1903) 1 KB 547 at 548 were referred to. It was conclusively submitted that where a statute has prescribed the mode of performing a duty or taking a particular action, no other method is to be employed vide IKPEKHIA vs. FRN (2015) ALL FWLR (PT 771) 1597 at 1628, EFIOK vs. GOVT OF CRS (2010) 34 WRN 42 at 54, BASF NIG LTD vs. FANH ENTP LTD (2010) 24 WRN 26 at 51-52 and OBARO vs. OHIZE (2010) 13 WRN 99 at 106.
The Appellant?s reply to the preliminary objection is on pages 1-4 of the Reply Brief. It was stated that the Appellant?s preliminary objection at the lower Court challenged the jurisdiction of the lower Court on grounds of law in that the action was incompetent, not having been initiated in compliance with Section 285 (9) of the 1999 Constitution and Section 87 (9) of the Electoral Act. It was opined that a ground of appeal which complains of lack of jurisdiction is a ground of law since jurisdiction is paramount and a case conducted in the absence of jurisdiction is a nullity. The cases ofLOKPOBIRI vs. OGOLA (2016) 3 NWLR (PT 1499) 328 at 360-361 and SHELIM vs. GOBANG (2009) 12 NWLR (PT 1156) 435 at 452 were relied upon. It was further stated that an issue of jurisdiction can be raised at any stage of the proceedings even for the first time on appeal without leave of Court. The cases of ONI vs. CADBURY PLC (2016) ALL FWLR (PT 827) 605 at 621-622 and OSIGBEMEH vs. EGBAGBA (2014) ALL FWLR (PT 744) 58 at 73 were called in aid.
The Appellant maintained that the grounds do not require leave of Court as ground 2 raises the question of abuse of process which is also a challenge to the jurisdiction of the Court, as the result of a process that is an abuse is the dismissal of the suit, which is final and not interlocutory. The cases of ABUBAKAR vs. BEBEJI OIL & ALLIED PRODUCTS LTD (2007) ALL FWLR (PT 362) 1855 at 1894 and 1902, ARUBO vs. AIYELERU (1993) 3 NLWR (PT 280) 126 at 146 and LOKPOBIRI vs. OGOLA (supra) were cited in support. It was further submitted that the complaint in ground 5 is to the effect that the lower Court had no jurisdiction to grant reliefs which were not sought for; and being an issue of jurisdiction and a ground of law, it does not come within the purview of Section 242 of the Constitution. It was conclusively submitted that grounds 1, 2 and 5 complained about, all emanate from the final decision of the lower Court delivered on 11th February 2019 as a Court of first instance and that appeals lie as of right from such a decision. Section 241 (1) of the 1999 Constitution was referred to.
RESOLUTION OF THE PRELIMINARY OBJECTION
The 1st & 2nd Respondents challenge to grounds 1, 2 and 5 of the Notice of Appeal is on the basis that the said grounds relate to an interlocutory decision of the lower Court for which leave was required to appeal on the said ground. The Appellant objected to the competence of the action at the lower Court and the jurisdiction of the lower Court to entertain the same. The lower Court incorporated the decision on the preliminary objection in the judgment in the matter whereby it upheld its jurisdiction and dismissed the preliminary objection.
Doubtless, the scarified grounds of appeal are in respect of the decision of the lower Court on the issue raised in the preliminary objection filed by the Appellant. The right of appeal conferred by Section 241 (1) of the 1999 Constitution provides for appeals as of right against final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance. The 1st & 2nd Respondents? contention, as I understand it, is that the decision of the lower Court upholding its jurisdiction and dismissing the preliminary objection is an interlocutory decision, for which leave is required before an appeal can be filed against the decision. It is no doubt the law that an appeal against an interlocutory decision, except where the grounds of appeal are grounds of law alone (see Section 241 (1) (b) of the 1999 Constitution), shall be with either the leave of the trial High Court or the Court of Appeal as stipulated in Section 242 (1) of the 1999 Constitution. By all odds, no leave was obtained before the Appellant filed its appeal, so if the decision appealed against is an interlocutory decision and the grounds of appeal are not grounds of law alone, then the appeal will be incompetent. But is the decision appealed against an interlocutory decision as argued by the 1st & 2nd Respondents? We will find out in a trice.
The question of when a decision is final or interlocutory is one which has agitated the Courts over the years, whether it is to be decided based on the nature of proceedings or application at which the decision is arrived at or based on the nature of the order made by the Court. Happily, the apex Court has laid the matter to rest and the applicable test in Nigeria is the nature of order test. In POATSON GRAPHIC ARTS TRADE LTD vs. NDIC (2017) LPELR (42567) 1 at 6-9, this Court (per Ogakwu, JCA) stated:
Central to the resolution of this first ground of objection is whether the decision of the lower Court was final or interlocutory…
The decision of the lower Court was in respect of an application to dismiss the counterclaims of the Appellants. The lower Court allowed the application and dismissed the said counterclaims for being statute barred.
It seems to me that the decision of the lower Court dismissing the counterclaims finally disposed of the rights of the parties in so far as the counterclaims were concerned and there remained nothing for the lower Court to determine in so far as it relates to the counterclaims. See AKINSANYA vs. UBA (supra), IGUNBOR vs. AFOLABI (supra) and ODUTOLA vs. ODERINDE (supra). Consequently, notwithstanding that the decision of the lower Court was in a Ruling delivered upon an interlocutory application the material consideration is not the function of the lower Court which delivered a Ruling, but the nature of the order made. Where, like in this case, the order is a dismissal, then it is a final decision. The test of determining whether a decision is final or interlocutory is now very well settled. In ALOR vs. NGENE (2007) 17 NWLR (PT 1062) 163 at 178, Tobi, JSC stated:
Two tests have been laid down for determining whether or not an order of Court is final or interlocutory. They are (a) the nature of the application made to the Court; (b) the nature of the order made. In Nigeria, it is the nature of order test that has been constantly applied. If the order made finally disposes of the right of the parties, then the order is final. If the order does not, then it is interlocutory. An order is also regarded as final if at once affects the status of the parties for whichever side the decision may be given, so that if it is given for the plaintiff, it is conclusive against the defendant, if it is given for the defendant, it is conclusive against the plaintiff. In order to determine whether or not the decision of a Court is final or interlocutory, the decision must relate to the subject matter in dispute between the parties and not the function of the Court making the order.
I iterate that the decision of the lower Court dismissing the counterclaim related to the subject matter of the dispute between the parties in the Appellants’ counterclaims and it finally disposed of the rights of the parties in the said counterclaims. Accordingly, by the nature of order test applicable in Nigeria, it is a final decision: OMONUWA vs. OSHODIN (1985) 2 NWLR (PT 10) 924, ABUBAKAR vs. DANKWAMBO (2015) LPELR (25698) 1 at 22-23 (CA) and DANKWAMBO vs. ABUBAKAR (2015) LPELR (25716) 1 (SC).?
In the circumstances, applying the nature of order test, the question is whether the decision of the lower Court on the question of jurisdiction has finally determined the rights of the parties on the issue. It is not whether the decision finally disposed of the rights of the parties in the substantive action: IGUNBOR vs. AFOLABI (2001) 11 NWLR (PT 723) 148 and WESTERN STEEL WORKS LTD vs. IRON & STEEL WORKERS UNION (1986) 2 NWLR (PT 30) 617.
Without a doubt, the decision of the lower Court that it has jurisdiction concluded the rights of the parties on that issue. The parties can no longer approach the lower Court for anything else on that issue. The lower Court is functus officio on the issue and it is therefore a final decision. In UGO vs. UGO (2017) LPELR (44809) 1 at 20-21, Onnoghen, CJN stated:
“Once a Court, in considering an interlocutory application challenging its jurisdiction, comes to the conclusion that it has jurisdiction to hear and determine the substantive matter, that decision is a final decision of the issue of jurisdiction as that Court cannot lawfully revisit the issue again in the same proceeding. The Court thereby becomes functus officio on the issue irrespective of the fact that the decision arose from an interlocutory proceeding. By coming to the conclusion that the Court had jurisdiction to entertain the petition for divorce, it had finally decided the rights of the parties as regards its jurisdiction.”
In his contribution at pages 24-26, His Lordship, Kekere-Ekun, JSC, stated:
“The issue in contention is whether the decision of the trial Court in the circumstances was a final or interlocutory decision. Addressing this vexed issue in Alor vs Ngene (2007) 17 NWLR (Pt. 1062) 163 at 175 F – H, (2007) 5 SCM 30, His Lordship Kalgo, JSC held: In plethora of decided cases, this Court decided that in this country, if the order, decision or judgment of a Court finally and completely determines the rights of the parties in the case, it is final. But if it does not, it is interlocutory only. And in order to determine whether the decision is final or Interlocutory, the decision must relate to the subject matter in dispute between the parties and not the function of the Court in making the order. Therefore, the determining factor is not whether the Court has finally determined an issue but it is whether or not it has finally determined the rights of the parties in the claim before the parties [sic: Court]. His Lordship continued at page 177 D – E: A final order envisages that it is a permanent order made by the Court and the parties in respect of whom or against whom the order is made cannot go back to the same Court to challenge or change that order. The Court is, by virtue of the order, functus officio and the only option to the parties is by way of appeal against that order.? Per Niki Tobi, JSC at 179 – 180 H-A (supra): A decision is said to be final when the Court that gave the decision has nothing else or nothing more to do with the case; to the extent that the Court becomes functus officio, a Latinism which literally means ?having performed his or her office. In the con of the Judge, it means that the duty or function that the Judge was legally empowered and charged to perform, has been wholly accomplished and that the Judge has no further authority or legal competence to revisit the matter. See also: Ogolo vs Ogolo (2006) 5 NWLR (Pt. 972) 173 @ 187 C-H, (2006) 4 SCM, 147 per Onnoghen, JSC (as he then was).
In the instant case, the trial Court having determined that it had the jurisdiction to entertain the petition had finally decided the rights of the parties as regards its jurisdiction and there could be no further reference to that Court in respect of that decision. Thus, even though the decision arose from an interlocutory application, the decision that the Court had jurisdiction to entertain the petition was a final one.”
I kowtow. The decision of the lower Court upholding its jurisdiction and dismissing the preliminary objection of the Appellant is a final decision. It is not interlocutory. Being final the Appellant could appeal as of right; it does not require the leave of Court under Section 242 (1) of the 1999 Constitution to appeal against the said decision.
Furthermore, though the issue raised in ground 5 of the Notice of Appeal was not part of the complaint of the Appellant in the preliminary objection which it raised before the lower Court, the complaint therein is that the lower Court did not have jurisdiction to award reliefs not claimed. This is undoubtedly a jurisdictional question. It is trite law that jurisdiction is a question of law and can even be raised for the first time before the apex Court and it is not necessary to first obtain leave of Court for it to be raised. See PETROJESSICA ENTERPRISES LTD vs. LEVENTIS TECHNICAL COMPANY LTD (1992) LPELR (2915) 1 at 23-24, OLUTOLA vs. UNILORIN (2004) LPELR (26632) 1 at 10, ELABANJO vs. DAWODU (2006) 15 NWLR (PT1001) 76 and ONI vs. CADBURY PLC (supra). Accordingly, the said chafed grounds 1, 2, and 5 are competent. The 1st & 2nd Respondents preliminary objection is therefore dismissed.
Before I proceed to consider the merits of the appeal, let me brevi manu deal with the Appellant?s contention that issue numbers 2, 3, 5 & 6 distilled by the 1st & 2nd Respondents are incompetent since they do not emanate from any of the grounds of appeal. I have already set out the issues formulated by the 1st & 2nd Respondents. I have apposed the said issues complained about with the eight grounds of appeal filed by the Appellant, and it is effulgent that the said issues do not take their roots from any of the said grounds of appeal. It is rudimentary law that issues for determination in order to be competent must be seen to have been crafted from a ground or grounds of appeal. Furthermore, a respondent who has not filed a cross appeal or Respondents Notice cannot formulate issues for determination which are outside the grounds of appeal filed by the appellant. See ADELAJA vs. FANOIKI (1990) 2 NWLR (PT 131) 137 at 148 and PRINCE OIL LTD vs. GTB (2011) LPELR (19754) 1. Any issues for determination which do not take their roots from the grounds of appeal are incompetent and liable to be struck out. Accordingly, the 1st & 2nd Respondents? issue numbers 2, 3, 5 and 6 which are not anchored in any of the grounds of appeal are hereby struck out and the submissions made on the said issues will be discountenanced and will not play any further part in this appeal. See UBA vs. MARCUS (2015) LPELR (40397) 1 at 13-15, PERE ROBERTO NIG LTD vs. ANI (2008) LPELR (4839) 1 at 4-6, ROSE STAR ENTS LTD vs. INDO (NIG) BANK LTD (2014) LPELR (23646) 1 at 18 and IKEOKAFOR vs. OBODOEZE (2018) LPELR (45068) 1 at 22.
THE APPEAL
Now, to the merits of the appeal. The issues as distilled by the Appellant will be our lodestar in the consideration of the submissions of learned counsel and determination of this appeal. In order to conduce to the utmost pellucidity I will consider issue numbers one and two together since they are of the same genus, dealing with the question of jurisdiction of the lower Court. Also issue numbers three to five which equally address the same genus, dealing with the propriety of the reliefs awarded by the lower Court, will also be considered and resolved together.
ISSUES FOR DETERMINATION
Whether in view of the extant provisions of Section 285(9) of the 4th Alteration to the 1999 Constitution of the Federal Republic of Nigeria, 1999 and Section 87(9) of the Electoral Act, 2010 (as amended), the trial Court had jurisdiction to entertain the 1st & 2nd Respondents? suit?
Whether the suit of the 1st & 2nd Respondents at the trial Court was an abuse of Court process and ought to have been dismissed by the trial Court?
SUBMISSIONS OF THE APPELLANT?S COUNSEL
The Appellant submits that by Section 285 (9) of the 4th Alteration of the 1999 Constitution, pre-election cases are to be filed within fourteen days from the date of the occurrence of the events. The 1st & 2nd Respondents, it was stated, contended that their action was governed by the extant provisions of Sections 251, 295 (2) of the 1999 Constitution and Section 87 (9) of the Electoral Act, as amended and therefore a pre-election suit. The lower Court, it was stated, ought to have pronounced on the implication or otherwise of Section 285 (9) of the 1999 Constitution as amended on the Suit; but that it rather descended into the arena to make a case different from what was presented by holding that the case was for enforcement of orders of the High Court of the Federal Capital Territory. It was stated that a Court cannot make a case for the parties different from what they presented vide IHEANACHO vs. CHIGERE (2004) 19 NSCQR 177.
It was maintained that from the affidavit evidence, the events complained about occurred from 30th September 2018 to 3rd October 2018 and that by 5th December 2018 when the action was commenced, a period of over two months had elapsed thereby offending Section 285 (9) of the 1999 Constitution which provided for fourteen days to commence an action. It was opined that election matters are sui generis and time is of the essence. The cases of HASSAN vs. ALIYU (2010) LPELR – 1357 (SC) page 48-49 and JAMES vs. INEC (2015) LPELR ? SC/478/2013 pages 62-63 were referred to. The failure to file the action within the prescribed period, it was stated robbed the Court of jurisdiction to entertain the matter. The cases of BUREMO vs. AKANDE (2017) LPELR ? 41565 (SC) 43-44, MARWA vs. NYAKO (2012) 6 NWLR (PT 1296) 199, ETIM vs. AKPAN (2019) 1 NWLR (PT 1654) 451 at 465, Appeal No. CA/A/39/2019: ALL PROGRESSIVES CONGRESS vs. EMENIKE (unreported) delivered on 28th January, 2019 and Appeal No. CA/A/95/2009: LIMAN vs. ALL PROGRESSIVES CONGRESS (unreported) delivered on 21st February 2019 were relied upon.
It is the further contention of the Appellant that by Section 87 (9) of the Electoral Act, as amended, it is an aspirant for the respective primary election of the Appellant that has the standing and locus to contest the outcome of any primary election and not alleged State Executive, as the present 1st & 2nd Respondents. The 1st & 2nd Respondents, it was asserted, did not have the locus standi to activate the jurisdiction of the Court and whatever is done where there is no jurisdiction is meaningless moonshine and a nullity vide OKEKE vs. LAWAL (2018) 12 NWLR (PT 1634) 393 at 405 and ONUE IWUSI vs. THE REGD TRUSTEE OF CHRIST METHODIST CHURCH (2011) VOL. 3 [incomplete citation].
The quiddity of the Appellants’ contention on the suit at the lower Court being an abuse of process is that there has been multiplicity of actions on the same subject matter pending at the High Court of Cross River State, which is subject of an appeal to this Court in CA/L/320/2018, and the action at the High Court of the Federal Capital Territory; such that the institution of the action at the lower Court was meant to irritate and/or annoy the Appellant. The 1st & 2nd Respondents, it was posited, were forum-shopping; a clear case of abuse of judicial process. The appropriate order it was stated is to dismiss the process which constitutes the abuse. The cases of CHIAGHANA vs. GOVT OF ANAMBRA STATE (2016) LPELR ? 42096 (CA) at 8-10, ABUBAKAR vs. BEBEJI OIL AND ALLIED PRODUCTS LTD (2007) LPELR ? 55 (SC) or (2007) 18 NWLR (PT 1066) 319 at 377-378, SARAKI vs. KOTOYE (1992) 9 NWLR (PT 264) 156, OJUKERE vs. OYEBANJI (2017) LPELR ? 42718 (CA) at 12-15, LOKPOBIRI vs. OGOLA (2015) LPELR – 40838 (SC) 67-68 among other cases were cited in support.
SUBMISSIONS OF THE 1ST & 2ND RESPONDENTS’ COUNSEL
The submission herein is under issue number one of the 1st & 2nd Respondents. They submit that Section 285 (14) of the 1999 Constitution as amended [Fourth Alteration] defines aspirant as one who complains about compliance by a political party with the provisions in respect of the selection or nomination of candidates for an election. It was stated that the 1st & 2nd Respondents are not aspirants and do not come within the ambit of Section 285 (14) of the 1999 Constitution as amended, as their action was for the lower Court to determine if there had been disobedience of Court orders and if so to exercise its disciplinary powers in respect of the said breach.
APPELLANT’S REPLY ON LAW
In the Reply Brief the Appellant submits that the intention and purpose of the action at the lower Court was to torpedo and truncate the outcome of the primaries of the Appellant at which the 1st & 2nd Respondents were not aspirants and that the orders of the lower Court at page 150 of the Records in CA/C/70/2019 reversing the outcome of the primaries conferred on the 1st & 2nd Respondents the status of ?aspirants?. The lower Court it was asserted acted outside its jurisdiction and powers and contrary to Section 285 (14) of the 1999 Constitution as amended by ordering that the Appellant?s candidates should not be recognized, particularly when the law is settled that a person who was not a candidate in a primary election conducted by the National Executive Committee of a party cannot approach the Court to complain vide EMEKA vs. OKADIGBO (2012) 18 NWLR (PT 1331) 35 at 104-105.
RESOLUTION OF ISSUE NUMBERS ONE AND TWO
In the exordium, I redacted the salient background facts of this matter. From the said background, it is translucent that the action at the lower Court was not in respect of the complaint by an aspirant with respect to the selection or nomination of a candidate of a political party for an election. To that extent the provisions of Section 285 (9) of the 1999 Constitution will not apply as the said stipulation is in respect of the time limit within which to commence a pre- election matter. Pre-election matter is defined in Section 285 (14) of the Constitution as amended to include the complaint by an aspirant about the conduct of party primaries in respect of the selection or nomination of candidates for an election. Where the facts of the action do not disclose that the action is a pre-election matter, the fact that the 1st & 2nd Respondents may have claimed it to be one would not make it so. Furthermore, where a Court correctly determines the character or nature of an action, the fact that it is not what the parties have contended that it is, does not amount to the Court making a different case for the parties. The lower Court in its judgment identified the case before it as being one complaining about disobedience of Court orders relating to Cross River State Executive of the Appellant. See pages 115 and 133-135 of the Records in CA/C/70/2019. The lower Court in expounding its jurisdiction held that it was imbued with jurisdiction to entertain the action by virtue of the provisions of Section 251 (1) (s) of the 1999 Constitution and Section 87 (9) of the Electoral Act. (See page 114 of the Records in CA/C/70/2019.)
A similar issue of jurisdiction was ventilated in the sister appeal CA/C/62/2019, the judgment of which was delivered earlier this morning. In holding that the lower Court did not have jurisdiction in the matter and was wrong to have assumed jurisdiction I, inter alia, stated as follows:
I have already set out the reliefs claimed by the 1st-2nd Respondents. For the lower Court to have the jurisdiction and requisite competence to entertain the matter, the subject matter must be within its statutory jurisdiction. The lower Court is a Court of enumerated jurisdiction in respect of the items set out in Section 251 of the 1999 Constitution. In order to exercise jurisdiction over a cause, the subject matter must be within the items which could be pitchforked into the enumerated jurisdiction of the Federal High Court: OLADIPO vs. NIGERIA CUSTOMS SERVICE BOARD (2009) 12 NWLR (PT 1156) 563 at 585 and OLUTOLA vs. UNILORIN (2004) 18 NWLR (PT 905) 416 at 462. The lower Court was well aware of this and at page 789 of Volume II of the Records it stated thus:
The Counsel to the Objectors have made very heavy weather of the provisions of Section 251 (1) of the 1999 Constitution of the Federal Republic of Nigeria [as amended] in urging me to hold that the Federal High Court has no jurisdiction to entertain this present suit.
I have read through the argument of Counsel on both sides and the authorities relied upon. There is no denying the fact that the Federal High Court is a Court with special jurisdiction circumscribed by the provisions of Section 251 (1) of the 1999 Constitution.
The lower Court identified the subject matter of the action in the following words at page 790 of Volume II of the Records:
In this case therefore, I am bound to take a deep look at the reliefs endorsed by the Plaintiffs in their Originating Summons in order to come to a conclusion whether I have jurisdiction or not to entertain the action. ?The claims of the Plaintiffs and the questions raised for determination reveal that I have simply been called upon to enforce the orders made on 20th September, 2018 and judgment delivered on 13th December, 2018 by the FCT High Court, coram Musa, J.
Obviously, the claim by the Plaintiffs as endorsed in the Originating Summons involve interpretation of the 1999 Constitution [as amended], the Constitution of the 1st Defendant and the judgment and orders of the FCT High Court in order to possibly enforce same. In this scenario I am unable to accede to the argument of Learned Counsel to the Objectors that this Court does not have both subject matter jurisdiction and party jurisdiction.?
In expounding its jurisdiction and deciding on the statute that imbued it with jurisdiction to espouse the 1st-2nd Respondents action, the lower Court found solace in the stipulations of Section 251 (1)(s) of the 1999 Constitution and Section 87 (9) of the Electoral Act. Hear the lower Court:
Subsection (s) of Section 251 (1) provides that the Federal High Court shall have an [sic] exercise ?such other jurisdiction civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly.
Thus, the National Assembly is imbued with powers to enact laws which may donate fresh jurisdictions to the Federal High Court either exclusively or to be exercised alongside other Courts of coordinate jurisdiction. And Section 87 (9) of the Electoral Act did just that.
The thrust of this case is to enforce the judgment and orders of the FCT High Court which judgment is now deemed the judgment of this Court.? (Underlining supplied)
(See page 789 of Volume II of the Records)
The lower Court then conclusively held as follows at page 792 of Volume II of the Records:
This ground of objection based on the jurisdiction of this Court to entertain the suit fails and same is accordingly dismissed. I hold that this Court has the jurisdictional competence in the peculiar facts and circumstances of this case to entertain the action.
In the prolegomenon I restated that the contest between the parties was with respect to the State Executives of the Cross River State Chapter of the 3rd Respondent and whether there has been disobedience to the orders of the High Court of Federal Capital Territory in respect thereto and also as it relates to the occupation of the Secretariat Annex of the 3rd Respondent. Now, does Section 87 (9) of the Electoral Act relied upon by the lower Court imbue it with jurisdiction to enforce the order of a Court with regard to the persons who are to hold offices in a political party and who are to be engaged in the governance of a political party. The said section provides as follows:
(9)Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT, for redress.
For the stipulations of the above Section 87 (9) to be applicable, the facts and circumstances of the case must fall within the ambit of the stipulation. The provision donates jurisdiction to the Court in very circumscribed situations, that is, where there is a complaint that the relevant provisions and guidelines have not been complied with in the selection or nomination of the candidate of a political party for election. It is therefore clear that the provision is not a carte-blanche. It has to be a complaint relating to the selection or nomination of a candidate for election: MADUEMEZIA vs. UWAJE (2015) LPELR (24542) 1 at 18-19.
The facts of this matter do not relate to the nomination or selection of anyone as a candidate of a political party for election. At the risk of prolixity, it is in respect of the alleged disobedience of the orders of the High Court of the Federal Capital Territory as it relates to the State Executive of the Cross River State Chapter of the 3rd Respondent and the occupation of the Secretariat Annex of the 3rd Respondent. Accordingly the limited jurisdiction conferred by Section 87 (9) of the Electoral Act, 2010 as amended does not in any way or manner imbue the lower Court with jurisdiction in the diacritical circumstances of this matter. The subject matter was also not within the enumerated jurisdiction of the lower Court under Section 251 (1) of the 1999 Constitution. Paucis verbis, the lower Court did not have the jurisdictional competence to entertain the action. The lower Court was therefore was wrong when it held that it was imbued with jurisdiction to entertain the matter by Section 87 (9) of the Electoral Act (see page 789 of Volume II of the Records). In the words of Obaseki, JSC in OLOBA vs. AKEREJA (1988) 3 NWLR (PT 84) 508 at 520:
If a Court or tribunal is not competent to entertain a matter or claim or suit, it is a waste of time for the Court to embark on hearing and determination of the suit, matter or claim… There is no justice in exercising a jurisdiction where there is none. It is injustice to the law, the Court and to the parties to do so.
The above views apply with equal force to this matter, since this instant appeal is against the same judgment of the lower Court as in CA/C/62/2019. Accordingly, I make bold to hold that the lower Court did not have the requisite jurisdiction to entertain the action.
With regard to the submission on the action at the lower Court being an abuse of process on grounds of multiplicity of action, it is hornbook law that instituting several actions on the same subject matter against the same opponent on the same issues even when there is a right to bring the action is an abuse of process of Court: OKORODUDU vs. OKOROMADU (1977) 3 SC 21 and OYEGBOLA vs. ESSO WEST AFRICAN INC. (1966) 1 ALL NLR 170. While it is inherent in the power of a Court to put an end to an action which is an abuse of process, the Court must exercise its power judicially and judiciously and with great circumspection: FASAKIN FOODS NIG CO. LTD vs. SHOSANYA (2003) 17 NWLR (PT 849) 237 at 247-248.
In holding that the action was not an abuse of process, the lower Court, inter alia, held that the parties in the three actions that were in Court were not the same (See page 118 of the Records in CA/C/70/2019). The Appellant in its submissions has not shown that the parties are the same. I have insightfully considered the processes in the other two actions which are Exhibits TAC1 and TAC2 of the affidavit in support of the preliminary objection at the lower Court which are compiled in the Records in CA/C/62/2019 and it is limpid that the parties are not the same. This being so the lower Court rightly held that the action was not an abuse of process on grounds of multiplicity of action. This, however, does not change the fact that the lower Court was not imbued with jurisdiction to entertain the action as Section 87 (9) of the Electoral Act which it relied upon does not imbue it with the requisite jurisdiction.
ISSUE NUMBERS THREE, FOUR AND FIVE
Whether the trial Court was right to have awarded the reliefs of the 1st & 2nd Respondents in view of their failure to prove their entitlement to the reliefs?
Whether the Judgment of the trial Court is perverse, considering the suit of the 1st & 2nd Respondents as constituted and evidence adduced during trial.
Whether the right to fair hearing of the Appellant was breached by the award of consequential reliefs by the trial Court
SUBMISSIONS OF THE APPELLANT?S COUNSEL
The Appellant submits that the 1st & 2nd Respondents did not adduce evidence to discharge the burden of proof on them and that the lower Court was therefore wrong to grant the reliefs claimed. It was stated that the 1st & 2nd Respondents did not prove that the orders of the High Court of the Federal Capital Territory were served on the Appellant as the affidavits of service, Exhibits 8-8B on page 19 of Volume I of the Record in CA/C/62/2019 do not establish service of the orders. The cases of AMIKA vs. IRONBAR (2010) LPELR – 3764 (CA) at 17-19 and NDAYAKO vs. DANTORO (2004) LPELR – 1968 (SC) at 31 were referred to on the means of proving service of process and it was opined that in the absence of proof that the orders were served it cannot be said that the order was disobeyed. The 1st & 2nd Respondents, it was maintained, did not prove their entitlement to the reliefs. The cases of OKOYE vs. NWANKWO (2014) LPELR – 23172 (SC), AJIBARE vs. AKOMOLAFE (2011) LPELR 3948 (CA) at 46-47 were relied upon and it was submitted that the lower Court ought to have dismissed the case of the 1st & 2nd Respondents.
It is the further submission of the Appellant that the lower Court did not properly evaluate the documents before it as the documents attached to the Originating Summons were public documents which were neither originals nor certified true copies and should therefore not have been relied upon in granting the reliefs claimed by the 1st & 2nd Respondents. It was further argued that the lower Court failed to take cognizance of the Further Counter Affidavit filed by the 3rd-5th Respondents on 11th February 2019, wherein the processes in respect of the appeal against the decision of the High Court of the Federal Capital Territory were exhibited.
The Appellant?s further contention is that Originating Summons was not the proper made of commencing the action to enforce the orders of the High Court of the Federal Capital Territory since the issues involved were contentious and controversial videZAKARI vs. MUHAMMAD (2017) 17 NWLR (PT 1594) 181. The 1st & 2nd Respondents, it was stated, did not seek interpretation of any statute, will or other written instrument between the parties in order invoke the use of Originating Summons.
The Appellant asserts that the lower Court went on a gratuitous spree, pronouncing on and awarding reliefs not claimed and by so doing descended into the arena and pronounced on issues that were not canvassed before it, which violated the Appellant?s right to fair hearing. The cases of ODUNZE vs. NWOSU (2007) LPELR – 2292 (SC), ORJI vs. ORJI (2011) 17 NWLR (PT 1275) 113, OJOH vs. KAMALU (2005) 18 NWLR (PT 958) 523, A-G FEDERATION vs. ABUBAKAR (2007) 10 NWLR (PT 1041) 1 among other cases were cited in support. The gratuitous order of the lower Court, it was opined was contrary to the settled principle of law that only the National Secretariat of a Political Party can produce and sponsor a candidate for election. The cases of EMEKA vs. OKADIGBO (2012) LPELR ? 9338 (SC) and AKPAN vs. BOB (2010) 17 NWLR (PT 1223) 421 at 501 were called in aid.
The Appellant maintained that matters relating to the internal or domestic affairs of a political party are non-justiciable as the dispute in this matter is over the political leadership of Cross River State Chapter Executive of the Appellant. The lower Court it was stated only has the jurisdiction to interfere in the political affairs when the issue has to do with nomination or selection of candidates for election vide the case of UFOMBA vs. INEC (2017) LPELR 42079 (SC). The Appellant conclusively argued that the consequential orders made by the lower Court violated its right to fair hearing as the said orders were not only far-reaching but constituted separate cause of action. The cases of DARMA vs. ECOBANK (2017) LPELR ? 41663 (SC) at 16-18, O.O.M.F. LTD vs. N.A.C.B. LTD (2008) 12 NWLR (PT 1098) 412 at 434 and LAWRENCE vs. A-G FEDERATION (2008) 6 NWLR (PT 1084) 453 at 476 were relied on. The Appellant doubled down on its submission that the consequential orders made were distinct and independent causes of action which were not incidental to the reliefs sought by the 1st & 2nd Respondents vide TITUS vs. BADO (2018) LPELR – 44002 (CA) at 17. It was posited that the violation of the Appellant?s right to fair hearing rendered the proceedings and its outcome null and void. The cases of NIGERIAN AGRICULTURAL CO-OP & RURAL DEVELOPMENT LTD vs. MBIO OKU IKOT OKU ODUNG MULTI-PURPOSE CO-OP SOCIETY LTD (2013) LPELR -20202 (CA) and ULEKE vs. KAKWA (2013) LPELR -20819 (CA) were relied upon.
SUBMISSIONS OF THE 1ST & 2ND RESPONDENTS? COUNSEL
The submissions herein are in issue number four distilled by the 1st & 2nd Respondents. They submit that by Section 6 (6) (a) of the 1999 Constitution, the judicial power vested in the Courts extends to all inherent powers and sanctions of a Court of law. The lower Court, it was stated, was constitutionally clothed with the legal jurisdiction to reward obedience and punish disobedience since a Court of record jealously guards the judicial process from being ridiculed or scandalized vide DINGYADI vs. INEC (2011) ALL FWLR (PT 581) 1426. It was stated that the lower Court was right to enforce the orders of the High Court of the Federal Capital Territory and to use its disciplinary powers to obviate or undo anything done in breach of the orders of the High Court of the Federal Capital Territory. It was posited that the significant holding of the lower Court to obviate or undo anything done in breach of the orders of the High Court of the Federal Capital Territory have not been challenged in this appeal, and that not having been challenged, it amounts to an admission that the lower Court has the power to obviate and undo anything done in breach of the orders of High Court of the Federal Capital Territory.
It is the further contention of the 1st & 2nd Respondents that the inherent powers and sanctions of a Court of law extends to the power of the lower ourt to make consequential orders following naturally in terms of consistency and giving effect to the main judgment and incidental to the principal order in the matter. The cases of UNITY BANK PLC vs. DENCLAG LTD (2012) 18 NWLR (PT 1332) 293, ELIGWE vs. OKPOKIRI (2015) 2 NWLR (PT 1443) 348 and UWAECHINA vs. OKEKE (2015) 14 NWLR (PT 1478) 108 were cited in support. It was asserted that where there has been disobedience to the order of Court, it is natural and consequential in the exercise of the disciplinary power of the Court to obviate and undo all that had been done in disobedience of the Court order, which was what the lower Court did in its consequential orders.
APPELLANT?S REPLY ON LAW
The Appellants reply on points of law in this regard is in paragraphs 3 .17 and 3.18 on pages 10-11 of the Reply Brief. It consists of a re-argument of the points already taken in the Appellants brief. Nothing new has been added and it is therefore inutile to reproduce the same contentions again. I only need to state that the repetition of an argument by Counsel does not improve the quality of the argument or make it acceptable, if it were ordinarily unacceptable. See FSB INTERNATIONAL BANK LTD vs. IMANO NIGERIA LTD (2000) 7 SCNJ 65 at 70 and MAGIT vs. UNIVERSITY OF AGRICULTURE, MAKURDI (2005) LPELR (1816) 1 at 43.
RESOLUTION OF ISSUE NUMBERS THREE, FOUR & FIVE
Let me start by saying that it is necessary to consider and resolve these issues because this Court is an intermediate appellate Court. Otherwise, having held that the lower Court did not have the jurisdiction to entertain the action, the concomitance is that the verdict arrived at, no matter how brilliant, cannot stand; since the defect of want of jurisdiction is extrinsic to the adjudication. Since I do not lay any claim to infallibility or to being a repository of knowledge, I will resolve these issues, in the unlikely event, that I arrived at a wrong decision on the jurisdictional question so that if there is a further appeal to the apex Court it would have before it the decision of this Court on all the issues ventilated in the appeal.
From the judgment of the lower Court, the decision of the High Court of the Federal Capital Territory which it held had been disobeyed and which it proceeded to enforce is the order made on 20th September 2018. It is instructive that the Appellant has not denied knowledge of the order of the High Court of the Federal Capital Territory. The Appellant’s contentions are on the perceived flaws in the affidavits of service, Exhibits 8-8B, on the strength of which it argues that service of the order, it was said to have disobeyed, was not proved.
There is no doubt that service of Court process is an inviolable part of the judicial process.
The essence of service is for the party served to be aware of the process. The purpose of an affidavit of service is to convince the Court that the process had been duly served. However, where a party is aware of a process and had taken steps in respect thereof, it is of no moment if there is no affidavit of service or if the affidavit of service is defective: OKESUJI vs. LAWAL (1991) NWLR (PT 170) 661 at 678. It is evident from the Records that the Appellant is aware of the orders made by the High Court of the Federal Capital Territory and steps had been taken to challenge the said orders. It is therefore a resort to undue technicality for the Appellant to contend that the affidavit of service, in respect of the order it is otherwise aware was made, is defective and therefore it had not been proved that the order was served on it. It is important to draw a parallel that the action at the lower Court was not a committal proceeding in which the service of the Court order with a Notice of Consequences of Disobedience of Court Order (Form 48), as required by the Judgments Enforcement Rules, made pursuant to the Sheriffs and Civil Process Act, would have been a precondition. Undoubtedly, the stipulations of the adjectival law, including the proof of service of Court process by affidavit of service are meant to be obeyed, but there is an important qualification or caveat and it is that their obedience cannot and should not be slavish to the point that justice in the case is destroyed or thrown overboard. When the issue is a question of adherence to our adjectival law, the Courts regard certain acts or conduct of non-compliance as mere irregularity which will be waived in the interest of justice and will not vitiate the proceedings. See ABUBAKAR vs. YAR?ADUA (2008) 4 NWLR (PT 1078) 465 at 510. Acceding to the Appellant?s contention that because the affidavit of service of an order which it is aware of is defective, connotes that it was not proved that the order was served on it, would be to throw justice overboard.
I iterate that the purpose of service is for the party to be aware; provided the party is aware, the existence of affidavit of service vel non or any defect therein becomes a moot point. See also CHUKWU vs. CUSTOMARY COURT UMUNUMO EHIME MBANO LGA (2014) LPELR (23813) 1 at 63-65. It is a similar reasoning with the Appellant?s contention that the documents attached to the Originating Summons are public documents that were not certified. It has not been disputed that the order sought to be enforced in the action at the lower Court was made by the High Court of the Federal Capital Territory. There is also no dispute as to terms of the order. The fact of the order having been made is admitted and requires no further proof: VEEPEE INDUSTRIES LTD vs. COCOA INDUSTRIES LTD (2008) LPELR (3461) 1 at 31 and PINA vs. MAI-ANGWA (2018) LPELR (44498) 1 at 14.
It is pertinent to state that the 1st & 2nd Respondents contention that the decision of the lower Court reversing what had been done in disobedience of the orders of the High Court of the Federal Capital Territory has not been challenged cannot be correct. The Appellant has contended that the reliefs claimed were not proved and that the lower Court granted reliefs which were not claimed. These contentions will captivate our attention shortly; but let me now deal with the Appellant?s contention that the lower Court was wrong when it failed to take cognizance of the Further Counter Affidavit filed by the 3rd-5th Respondents. It is no doubt trite law that a Court is to have recourse to all processes filed in order to decide the matter before it. To rely on the affidavit filed by one party and ignore the affidavit filed by the other party will be a denial of the right to fair hearing. See AWOYOMI vs. CHIEF OF ARMY STAFF (2013) LPELR (22121) 1 at 34 and SAIKI vs. SIMON (2010) LPELR (8968) 1 at 12. The pristine question is whether the said Further Counter Affidavit was actually before the lower Court. The judgment of the lower Court was delivered on 11th February 2019. The Further Counter Affidavit was also filed on 11th February 2019. But there is nothing in the Records to show if the said Further Counter Affidavit had been filed before the judgment was delivered and if in fact it was brought to the notice of the lower Court before it delivered its judgment. Courts are not given to conjectures and speculation but to hard facts: IKENTA BEST (NIG) LTD vs. A-G RIVERS STATE (2008) LPELR (1476) 1 at 51, OLUFEAGBA vs. ABDUR-RAHEEM (2010) ALL FWLR (PT 12) 1033 at 1074, OMOROGBE vs. ENEHIZENA (2018) LPELR (44833) 1 at 3-4 and PDP vs. INEC (2012) LPELR (8369) 1 at 22.
In the circumstances, it would be speculative to hold that the lower Court failed to take cognizance of the Further Counter Affidavit, since it is not clear if the process had been filed and was before the Court when it delivered its judgement.
Now to the contention that the lower Court granted reliefs which were not claimed. I have reproduced the reliefs claimed by the 1st & 2nd Respondents at the lower Court. These reliefs in essence were on the disobedience of the order of the High Court of the Federal Capital Territory that the 3rd-5th Respondents were not the State Executive of the Appellant in Cross River State and the taking over of the State Secretariat Annex of the party by the 3rd-5th Respondents. Any reversal of this order that was allegedly disobeyed would involve stopping them from so holding themselves out and also ousting them from the party office. The orders of the lower Court complained about which I earlier set out and which the lower Court made in the toga of consequential orders majorly dealt with the candidates of the Appellant selected or nominated by the Appellant for the National and State elections with the order that the Independent National Electoral Commission should not recognize the said candidates. There was no relief claimed in this regard and what is more the parties before the Court were not heard before the reliefs were granted; neither were the candidates affected by the order, who were not parties to the action, given a hearing before the order which affected their interest was made. It seems to me that this consequential order went into the realm of a pre-election matter within the meaning of Section 285 (14) of the 1999 Constitution as amended, id est, a complaint in respect of the selection or nomination of candidates for an election. I will demonstrate how this is so in a bit. The contention of the 1st & 2nd Respondents is that the said orders were consequential reliefs which were incidental to the principal order and was to make the principal order effective and effectual.
The law is settled beyond peradventure that both the Court and the parties are bound by the reliefs claimed as framed and it is not the duty of the Court to grant any relief outside what had been claimed. In the words of Tobi, JSC in EAGLE SUPER PACK (NIGERIA) LTD vs. ACB PLC (2006) 19 NWLR (PT 1013) 20 or (2006) LPELR (980) 1 at 40:
It is elementary that a Court is bound by the relief or reliefs sought. The generosity or charity of a Court of law is confined strictly to the relief or reliefs sought to the extent that a Court of law cannot give a party what he did not claim. That is completely outside our procedural law. The rationale behind this is that a party who comes to Court knows where the shoe pinches him and therefore knows the limits of what he wants. The Court, as an unbiased umpire, so to say, cannot claim to know the relief or reliefs better than the party…
See also DUMEZ NIG LTD vs. NWAKHOBA (2008) LPELR (965) 1 at 26, AKINTERINWA vs. OLADUNJOYE (2000) LPELR (358) 1 at 40 and SIMEON vs. COLLEGE OF EDUCATION, EKIADOLOR, BENIN (2014) LPELR (23320) 1 at 28.
The 1st & 2nd Respondents knew the paregoric they desired from the lower Court and consequently claimed reliefs in that regard. Defining the meaning of claim in OSUJI vs. EKEOCHA (2009) LPELR (2816) 1 at 55, Tobi, JSC stated as follows:
A claim, in our adjectival law originates an action. It is the pivot or cynosure of the case. It sets out the relief or reliefs sought by the plaintiff. A plaintiff is bound by his claim and must not deviate from it willy-nilly. A plaintiff cannot in law present a case different from his claim as the law regards such an unsolicited procedure completely outside the law.
It is equally hornbook law that a Court cannot adjudicate between parties on the basis of a claim not formulated by them. In the words of Adekeye, JSC in OSUJI vs. EKEOCHA (2009) LPELR (2816) 1 at 44:
The position of the law is clear that a Court of law can only grant reliefs claimed by a party and not more. It is trite that a Court is duty bound to adjudicate between the parties on the basis of the claim formulated by them.?
In the circumstances, it was not open to the lower Court to make the ?consequential orders? which were not part of the reliefs and which being in the character of the reliefs in a pre-election matter, which the 1st & 2nd Respondents distanced their action from, at least before this Court; was an entirely new and unclaimed relief. This is not permissible and an appellate Court will definitely interfere to redress the situation as such a decision is perverse. In ATOLAGBE vs. SHORUN (1985) 1 NWLR (PT 2) 360, Oputa, JSC stated that a perverse decision simply means persistent in error, different from what is reasonably required, against the weight of evidence, or where the Court shuts its eyes to the obvious. See also JAMES vs. INEC (2015) LPELR (24494) 1 at 80 (SC).
Now, the perversion in the decision of the lower Court in holding that the names of Appellant?s selected or nominated candidates for election should not be accepted by the Independent National Electoral Commission brings to the fore whether such an order could have been made at the instance of the 1st & 2nd Respondents, who by their own showing are not aspirants. By Section 285 (14) of the 1999 Constitution as amended by the Fourth Alteration, it is only an aspirant that can complain about the conduct of primaries for the selection or nomination of candidates for an election by a political party. There is yet a further aspect to this ?consequential order? and it is this. The primaries at which the candidates of the Appellant for election emerged were held about two months before the action at the lower Court was commenced. Arguendo, if the 1st & 2nd Respondents were aspirants, could they have maintained any action in respect of the party primaries more than two months after the primaries? Definitely not! The stipulations of Section 285(9) of the 1999 Constitution as amended by the Fourth Alteration is relevant. It provides that a pre-election matter shall be filed not later than fourteen days from the date of the occurrence of the event. So if the orders could not have been made in an action commenced for that purpose as at the date the action at the lower Court was instituted, it beats me hollow how the lower Court could have made the said orders as consequential orders. The lower Court was therefore wrong to have granted the reliefs which were not claimed.
In truth the said reliefs are not even consequential orders as known to law. A consequential order is an order that naturally follows or flows from the decision of the Court and is meant to strengthen the relief claimed. A consequential order cannot properly be made to give a party entitlement to a relief that has not been established in his favour. The consequential orders have to necessarily follow upon the success of the relief sought. See OBAYAGBONA vs. OBAZEE (1972) 5 SC 247 at 254-255, FABIYI vs. ADENIYI (2000) 6 NWLR (PT 662) 532, BOGBAN vs. DIWHRE (2005) 16 NWLR (PT 951) 274, AKPANUDOEDEHE vs. AKPABIO (2011) LPELR (4944) 1 at 21 and ANKPA vs. MAIKARFI (2008) LPELR (3776) 1 at 52. There was no relief sought with respect to the conduct of the primaries at which the candidates of the Appellant for election were selected or nominated. It is where such a relief had been claimed and it succeeds that a consequential order can necessarily follow with respect to the fate of the candidates who emerged at such a primary. That is not the position in this matter. In AWONIYI vs. THE REGD TRUSTEES OF AMORC (2000) LPELR (655) 1 at 33, Iguh, JSC stated:
The purpose of a consequential order is to give effect to the decision or judgment of the Court but not by granting an entirely new, unclaimed and/or incongruous relief which was not contested by the parties at the trial and neither did it fall in alignment with the original reliefs claimed in the suit nor was it in the contemplation of the parties that such relief would be the subject matter of a formal executory judgment or order against either side to the dispute. A consequential order may also not be properly made to give to a party, an entitlement to a relief he has not established in his favour. See Akinbobola v. Plisson Fisko Nigeria Ltd. and Ors. (1991) 1 NWLR (Pt.167) 270 at 288; Obayagbona v. Obazee (1972) 5 S.C. 247; Liman v. Alhaji Mohammed (1999) 9 NWLR (Pt. 617) 116.”
In the same vein, this Court (per Agim, JCA) stated as follows in PDP vs. INEC (2015) LPELR (25669) 1 at 85-87:
“Learned Counsel for the appellant has argued that the order of a fresh election can be made as a consequential order in the interest of justice or as an order that meets the justice of the circumstances of the case. There is no doubt that one of the inherent powers of the Court is to make consequential orders in the interest of justice even though the order was not specifically asked for by either party to the case. See Akapo V Hakeem-Habeeb & Ors (1992) 7 SCNJ 119 and Iyaji V Eyigebe (1987) NWLR (pt. 61)523. But this inherent power of a Court to make consequential orders does not include the power to grant a substantive or principal or basic relief, that the nature of the case in the pleading necessitates should be asked for as part of the cause for the action and without which the action fails ab initio. A consequential order is an order whose need arises naturally as a direct result of substantive relief, to give effect to the substantive relief. Without the substantive or basic relief, it cannot exist. This distinction is clearly brought out by the Supreme Court per Tobi JSC in Eagle Super pack (NIG) Ltd V ACB PLC (2006) 19 NWLR (pt. 1013) 20, thus: ?A consequential order is an order that follows as a result of the earlier one which can be called for this purpose as the main order. It may have an indirect or secondary result in the relief awarding process. A consequential order is appurtenant to the main or principal order. A clearly fresh order cannot be a consequential order.? In A-G Federation V AIC Ltd (2000) 4 SC (pt. 1) 175, the Supreme Court per Ejiwunmi JSC held that a consequential order cannot be made to grant a fresh and unclaimed or unproved relief. In Awoniyi V Registered Trustees of Amorc (supra), the Supreme Court held per Iguh JSC that ?the purpose of a consequential order is to give effect to the decision or judgment of the Court but not by granting an entirely new, unclaimed, or incongruous relief which was not contested by the parties at the trial and neither did it fall in alignment with the original reliefs claimed in the suit, nor was it in the contemplation of the parties that such a relief would be the subject matter of a formal executory judgment or order against either side to the dispute.? See also Owena Bank PLC V Nigerian Stock Exchange Ltd (1997) All NLR 137 (SC).
I iterate that the consequential orders of the lower Court are not consequential orders as known to law. The orders are entirely new, unclaimed and unproved fresh orders that are not consequential to the principal or basic reliefs claimed in the action. The orders violate the Appellant?s right to fair hearing as it was not heard before the lower Court gratuitously made the orders as though it were Santa Claus. The orders cannot be allowed to stand. The denial of fair hearing is a breach of one of the rules of natural justice, that is, the requirement that a party must be given a fair hearing. The consequence of a breach of the rule of natural justice of fair hearing is that the proceedings in the case are null and void. If a principle of natural justice is violated, it does not matter whether if the proper thing had been done, the decision would have been the same; the proceeding will be null and void. In other words, if the principles of natural justice are violated in respect of any decision, it is immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision. Resultantly, the decision of the lower Court must be set aside. See ADIGUN vs. A-G OYO STATE (1987) 1 NWLR (PT 53) 678 and SALU vs. EGEIBON (1994) 6 NWLR (PT 348) 23 at 44.
SUMMATION
The harbour looms into sight. It only remains to berth the vessel that is this judgment at the quays. The conflating of all that has been said thus far is that both on the score of the lower Court having entertained the matter when it had no jurisdiction so to do, and on the score of the lower Court making gratuitous orders and reliefs which were not claimed as though it were a chartable institution and which orders were an evisceration of the right of the Appellant?s to fair hearing, this appeal must ineluctably succeed. The decision of the lower Court is hereby set aside in its entirety. The Appellant is entitled to the costs of this appeal which I assess and fix at N500, 000.00 against the 1st & 2nd Respondents.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brother, Ugochukwu Anthony Ogakwu, J.C.A.
TIJJANI ABUBAKAR, J.C.A.: My lord and learned brother OGAKWU JCA, granted me the privilege of reading in draft the comprehensive leading Judgment just rendered in this appeal. My lord gave comprehensive analysis of the issues nominated for discourse in this appeal.
A judgment given without jurisdiction cannot be affirmed, such judgment is invalid, null and void as it cannot be erected on any pedestal, where such judgment is given, it will collapse on appeal like pack of cards because it must be set aside, see: GBANIYI OSAFILE & ANOR V. PAUL ODI & ANOR (1990) LPELR-2783 (SC).
A Court of law has no business whatsoever delving into issues that are not properly placed before it for resolution, a Court of law has no business being generous and open-handed, dishing out unsolicited reliefs, a Court of law is neither father Christmas granting unsolicited reliefs nor Knight errant looking for skirmishes all about the place, a Court of law as an impartial arbiter must confine its self to the reliefs sought by the parties, see: EJOWHOMU V. EDOK- ETER LTD (1986) 5 NWLR (Pt. 39) 1 at 21 and OSSAI V. WAKWAH (2006) 2 SCNJ 19 at 36.
I am in full agreement with my learned brother that Appellant’s appeal is meritorious and therefore deserves to be allowed, it is also allowed by me. I endorse all consequential orders including the order on costs.
Appearances:
Mba. E. Ukweni, SAN with him, Mrs. O. A. Ochi, Chief P. A. Akpoke, Mrs. E. O. Onah, Mrs. E.O. Olowoniyi, Miss Eno Edet and I. J. Undiandeye, Esq. holding the brief of D. D. Dodo, SANFor Appellant(s)
A. E. Okpa, Esq. with him, Dr. O. E. Owa for the 1st & 2nd Respondents.
E. E. Osim, Esq. for the 3rd-5th RespondentsFor Respondent(s)
