APC & ANOR v. MOSES & ORS (2020)

APC & ANOR v. MOSES & ORS

(2020)LCN/14895(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, December 29, 2020

CA/PH/244/2020

RATIO

JURISDICTION: FUNDAMENTAL NATURE OF ISSUE OF JURISDICTION

The Law is trite that issue of jurisdiction is very fundamental to adjudication because if a Court possesses no jurisdiction to adjudicate on a matter the proceeding will be a nullity right from the commencement of the action. The Court must therefore as a matter of utmost urgency decides issue or matter touching and concerning its jurisdiction once it is raised either by the parties or the Court of its own motion before delving into the merit of the action. Jurisdiction is the very heart of any matter. Any proceeding conducted without jurisdiction is void and a nullity ab initio. I call in aid the imperishable words of that legal icon and a great jurist KAYODE ESO, JSC (of blessed memory) in the case of the ATTORNEY – GENERAL OF LAGOS STATE VS HON. JUSTICE L. J. DOSUNMU (1989) 3 NWLR (Pt. 111) 552 AT 608 C where the eminent jurist said:
“It is futile to set down issues, deliberate on the evidence led and resolve point of law raised, if the Court seised of the matter is devoid of jurisdiction. The substratum of a Court is no doubt jurisdiction, without it, the “labourers” therein, that is both litigants and Counsel on the one hand and the Judge on the other hand, labour in vain.”
See also CHIEF DANIEL AWODELE OLOBA VS ISAAC OLUBODUN AKEREJA (1988) 2 NSCC 120 at 129 per OBASEKI, JSC who held thus:
“The issue of jurisdiction is very fundamental as it goes to the competence of the Court or Tribunal. If a Court or Tribunal is not competent to entertain a matter or claim or suit, it is a waste of valuable time for the Court to embark on the hearing and determination of the Suit, matter or claim. It is therefore an exhibition of wisdom to have the issue of jurisdiction or competence determined before embarking on the hearing and determination of the substantive matter. The issue of jurisdiction being a fundamental issue, it can be raised at any stage of the proceedings in the Court of first instance or in the Appeal Court. This issue can be raised by any of the parties or by the Court suo motu if the parties fail to draw the Court’s attention to it. See ODIASE VS AGHO SUPRA. There is no justice in exercising jurisdiction where there is none. It is injustice to the Law, to the Court and to the parties so to do.” PER OLABISI IGE, J.C.A.

PRELIMINARY OBJECTION: PROCEDURE FOR FILING A PRELIMINARY OBJECTION

The said Order 10 Rule 1 of the Court of Appeal Rules 2016 provides:-
“10(1) A Respondent intending to rely upon a preliminary objection to the hearing of the Appeal shall give the Appellant three clear days notice thereof before the hearing setting out the grounds of objection and shall file such notice together with twenty copies thereof with the Registry within the same time.”
See:
1. HUSSENI & ANOR VS MOHAMMED & ORS (2014) 12 SCM. 230;
2. LAFIA LOCAL GOVERNMENT VS THE EXECUTIVE GOVERNOR OF NASARAWA STATE & ORS (2012) 11 NWLR (PART 1328) 94 AT 124 D – F per OLABODE RHODES-VIVOUR, JSC who said:-
“A preliminary objection can be taken against the hearing of an appeal and not against the competence of the Brief of a party to the appeal. The purpose of a preliminary objection is to contend that the appeal is fundamentally defective or incompetent. If it succeeds the hearing of the appeal abates.” PER OLABISI IGE, J.C.A.

ELECTION MATTERS: PROCEDURE FOR HEARING AND DETERMINATION OF PRE-ELECTION MATTER

Now Subsections 9 – 14 of Section 285 of the Constitution of the Federal Republic of Nigeria 1999 as amended are as follows:

(9) Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.
(10) A Court in every pre-election matter shall deliver its judgment in writing within 180 days from the date of filing of the suit.
(11) An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment appealed against.
(12) An appeal from a decision of a Court in a pre-election matter shall be heard and disposed of within 60 days from the date of filing of the appeal.
(13) An election Tribunal or Court shall not declare any person a winner at an election in which such a person has not fully participated in all stages of the election.
(14) For the purpose of this section, “pre-election matter” means any suit by –
(a) an aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an election;
(b) an aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the selection or nomination of candidates and participation in an election; and
(c) a political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election.” PER OLABISI IGE, J.C.A.

INTERPRETATION: POSITION OF THE LAW CONCERNING INTERPRETATION OF THE CONSTITUTION AND STATUTES

One of the settled position concerning interpretation of the Constitution and statutes is that where the provisions of the Constitution or statute sought to be interpreted have been examined, interpreted and pronounced upon by the apex Court in the land all subordinate Courts must follow and adhere to the interpretation placed on such provisions of the Constitution or of a statute. Issue of Construction or interpretation of such statute will not arise. The apex Court has comprehensively interpreted the provisions of 285 particularly Subsection 14 of the said Constitution in the case of ALL PROGRESSIVE CONGRESS V. IBRAHIM UMAR & ORS (2019) 8 NWLR (PART 1675) 564 at 575 A – H to 576 A – F per SANUSI, JSC who said:
”It is elementary preposition of law, that jurisdiction of Courts is donated by the statute and by not the Court itself. No Court has the power to extend or expand the time assigned or stipulated by the Constitution or the law. The provisions of Section 285(11) and (12) of the 1999 Constitution (as amended), provides time frame within which to hear or determine a suit or an appeal. PER OLABISI IGE, J.C.A.

ACTION: WHEN WILL A MATTER OR SUIT BECOME ACADEMIC

It is trite and well settled law, that a matter or suit becomes academic when it becomes purely theoretical and is of no practical value to the plaintiff or appellant even if judgment is given in his favour. See: Plateau State v. A.G Federation (2006) 3 NWLR (Pt.967) 346 at 419; C. P. C. v. I.N.E.C (2011) LPELR 8257 (SC); (2011) 18 NWLR (Pt. 1279) 493. PER OLABISI IGE, J.C.A.

WORDS AND PHRASES: MEANING OF THE WORDS “ELECTION AND PRE-ELECTION”

I think it would be apt to say that the word “election” means the process of choosing by popular votes, a candidate for political office in a democratic Government. See: Ojukwu v. Obasanjo (2004) 12 NWLR (Pt. 886) 169, Buhari v. Obasanjo (2005) 2 NWLR (Pt.910) 241. It goes without saying therefore, that any preparation or process embarked upon by a political party in preparation for an election can as well be regarded as “PRE” – election” or prior to the election or before the election as opposed to post-election which would obviously relate to any exercise or process done after the election. To my mind therefore, the process or exercise embarked upon by a political party such as congress, nomination exercise etc are all pre-election matters or exercise. PER OLABISI IGE, J.C.A.

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

1)ALL PROGRESSIVES CONGRESS 2. ADAMS OSHIOMOLE APPELANT(S)

And

DELE MOSES 2. POOMI FRIDAY 3. GBOSI VINCENT 4. NWANKWO FREEDOM 5. OTIOMA LUCKY 6. KINGDOM NWOSU 7. TUANWIN ATENI 8. UGOCHUKWU NWOCHA 9. PETER N. BOBMANUEL 10. EMMANUEL OKIASI RESPONDENT(S)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Rivers State sitting at Port Harcourt delivered by Honourable Justice George O. Omereji in Suit No. PHC/4634/2019, Dele Moses & Ors v All Progressive Congress & Anor.

The Claimants now Respondents to this appeal have by their ORIGINATING SUMMONS dated and filed on the 27th December, 2019 claimed to be entitled to the following Declaratory reliefs and Orders viz:-
“1. A DECLARATION that sequel to the judgments of the High Court of Rivers State in BHC/78/2018: Ibrahim Umah & 22 Ors. vs. APC, Court of Appeal in Appeal No. CA/PH/461/2018: APC vs. Umah & 22 Ors and Supreme Court in SC/1333/2018: APC vs. Umar & 22 Ors, it is only the Claimants and all members of the 1st Defendant who paid for the nomination forms for the May 5, 2018 Ward Congresses of the 1st Defendant in Rivers State that are entitled and qualified to participate in Ward Congresses of the 1st Defendant in Rivers State that is yet to be conducted.
2. A DECLARATION that the payments of the requisite nomination fees made by the Claimants for the

APC Congresses is still valid and remains valid for any future Congress to be held by the 1st Defendant since no valid Congress have been conducted by the 1st Defendant.
3. A DECLARATION that the request by the Defendants for the Claimants to make payments for the purchase of fresh nomination forms for participating in the Ward Congress, that was scheduled for 21st December, 2019 or any other date in Rivers State is null and void.
4. A mandatory Order commanding the Defendants to forthwith unconditionally issue nomination forms to the Claimants and only those other members of the 1st Defendant who paid for the May 5, 2018 Ward Congresses in Rivers State for participating in the 1st Defendant’s Congresses yet to be conducted in Rivers State to the exclusion of all other members of the 1st Defendant who did not pay before May 5, 2018.
5. A Perpetual Order restraining the Defendants from demanding for fresh nomination fees for participation in the 1st Defendant’s Ward, Local Government or State Congresses yet to be conducted in Rivers State.
6. A Perpetual Order restraining the Defendants from recognizing or accepting any result of Ward;

Local Government and/or State Congress/primaries election conducted with the exclusion of the Claimant.
7. And for such Order(s) as the Honourable Court may deem fit to make in the circumstances.”

The said reliefs were predicated on anticipated favourable answers to the following questions:
“1. Whether having made requisite payments for the nomination forms and in consideration of the Courts judgments in suit Nos. BHC/78/2018, Appeal No. CA/PH/461/2018 and SC/1333/2018, the Claimants are not entitled to be given nomination forms to participate in the Ward Congress of the 1st Defendant to the exclusion of all others?
2. Whether the Defendants are entitled to payment of fresh nomination fees for the Ward Congress in Rivers State that was scheduled for 21st December, 2019 or any other date.
3. Considering the Courts judgments in suit Nos. BHC/78/2018, Appeal No. CA/PH/461/2018 and SC/1333/2018, and the provisions of Section 20 (1) of the APC Constitution 2014 (as amended), whether the Defendants can exclude the Claimants from participating in the said Ward Congress?”

The said Originating Summon was accompanied with 26

paragraph Affidavit which are as follows:-
“AFFIDAVIT SETTING OUT THE FACTS RELIED UPON IN THE ORIGINATING SUMMONS
I, DELE MOSES, Nigerian, Christian, Adult, Male and Businessman of No. 28 Gbarabani Close Baa Lueku, Khana Local Government of River State, Nigeria do hereby make oath and state as follows:
1. I am the 1st Claimant on record and I am very conversant with the facts of this case.
2. I have the consent and authority of the 2nd to 10th Claimants in this suit to swear to this affidavit for myself and on behalf of all of them.
3. The 1st Defendant is a registered political party in Nigeria and the 2nd Defendant the current National Chairman of the 1st Defendant.
4. The Claimants are all fully registered and financial members of the All Progressives Congress (APC) from different Wards of the 319 Wards of Rivers State as delineated by the Independent National Electoral Commission (INEC). Copies, of the Claimants membership registration slips are hereby attached and marked as Exhibits “A1” to “A10”.
5. The Claimants paid the requisite nomination fees to enable them participate in the 1st Defendant’s Ward Congress

scheduled for May 5, 2018. Copies of the bank deposit’ slips evincing the said payment are hereby attached and marked as exhibits “B1” to “B10”.
6. Having paid for the nomination fees; the “Claimants are entitled to” be issued the nomination forms and allowed to participate in the 1st Defendant’s Ward Congress without any form of discrimination.
7. Despite the said payment, the Defendants excluded the Claimants and refused to issue the congress nomination forms to the Claimants and some other members of the 1st Defendant in Rivers State.
8. As a result of this unconstitutional exclusion and discrimination, some other members of APC in Rivers State (Ibrahim Umah and 22 others) instituted an action against the 1st Defendant at the Rivers State High Court in Suit No BHC/78/2018; Ibrahim Umah & 22 Ors vs. A.P.C.
9. I know that the Court in Suit No BHC/78/2018; Ibrahim Umah & 22 Ors vs. A.P.C. delivered its judgment in favour of Ibrahim Umah & Co., and held amongst others that the Claimants are entitled to participate in the APC Ward Congress having paid the requisite nomination fees and that the exclusion of the Claimants from

participating in the ward Congress is unconstitutional, null and void. A certified true copy of the said judgment is attached and marked as Exhibit “C”.
10. I know that the judgment in Exhibit “C” applies to all members of the 1st Defendant (including the Claimants herein) who paid the requisite nomination fees for the 1st Defendant’s Ward Congress nomination forms and were excluded from participating in the Ward Congress.
11. The Defendants appealed against the said judgment (Exhibit “C”) to the Court of Appeal in Appeal No. CA/PH/461/2018; APC vs. Umah & 22 Ors and the Court of Appeal dismissed the appeal. A copy of the judgment of the Court of Appeal dismissing the appeal is hereby attached and marked as Exhibit “D”.
12. The Defendants further appeal to the Supreme Court in SC/1333/2018; APC vs. Umar & 22 Ors and the Supreme Court also dismissed the appeal. A copy of the Supreme Court judgment is hereby attached and marked as Exhibit “E”.
13. The judgment of the Courts in Exhibits C, D and E wherein the Courts held that the exclusion of the Claimants from participating in the ward Congress is unconstitutional,

null and void are still valid and subsisting.
14. I verily believe that by virtue of the said judgment of Courts, only those who paid the requisite nomination fees for the 1st Defendant’s Rivers State Ward Congresses in 2018 are entitled to participate in the Congresses.
15. I verily believe also that it is only the Claimants and all those persons who paid for the said Congress that are entitled to participate in the ward congress yet to be conducted by the 1st Defendant in Rivers State since no valid congress has been conducted.
16. Despite the Courts judgment in Exhibits C, D, and E, the Defendants schedule ward congress on the 21/12/2019 and demanded fresh payments for nomination forms. An online copy of the APC Notice of Congresses issued by the 1st Defendant’s National Organizing Secretary (Emma Idediro Esq.,) published by Punch.ing and a Certificate in compliance of the Evidence Act are hereby attached and marked as Exhibits F and F1.
17. The money/nomination fees paid by the Claimants to the 1st Defendant for the purchase of the Congress nomination forms as shown in Exhibits B1 to B10 is still with the Defendants and still valid

since no valid congress has been conducted by the 1st Defendant here in Rivers State.
18. I verily believe that the demand for payment of fresh nomination fees is illegal, unconstitutional and contrary to the Courts judgment in Exhibits C, D and E.
19. I know as of fact that there is no provision of the 1st Defendant’s Constitution or Guidelines for the Conduct of Ward, Local Government and State Congress, 2018 that stipulate that any member of the party shall pay twice for the party’s ward congress nomination form before he or she will be allowed to participate in the party’s ward congress or that the party shall demand for payment of nomination fees twice before conducting a valid congress. A copy of the APC Guidelines for the Conduct of Ward, Local Government and State Congress, 2018 is hereby attached and marked Exhibit G.
20. I also know that the Defendants do not have the powers to demand for fresh nomination fees for participation in the Congress.
21. If the Defendants are allowed to conduct the party’s ward congress in exclusion of the Claimants or demand for fresh nomination fess, the rights of the Claimants and all the

members of the 1st Defendant who paid the requisite nomination fees in 2018 will be irreparably prejudiced.
22. I know that the Intervention of the Honourable Court is needed to stop the Defendants from perpetrating injustice and to avoid break down of law and order.
23. That the Defendants will not be prejudiced by the grant of the prayers of the Claimants.
24. I undertake to pay any damage if this summons is found to be frivolous.
25. That it is in the interest of justice for this summons to be granted to prevent the Defendants from conducting ward congress in exclusion of the Claimants or demand for fresh payment of nomination fees.
26. I make this affidavit in utmost good faith believing the contents to be true and correct in accordance with the Oaths Act.
Sgd.
DEPONENT.”

The Appellants filed Counter Affidavit of 13 paragraphs against the Originating Summons and a Further Affidavit and Reply on Point of Law were also filed. The Appellants also filed a Preliminary Objection against the said Originating Summons, wherein the jurisdiction of lower Court was challenged by the Appellants.

The Motion on Notice challenging the jurisdiction of lower Court can be found on pages 96 – 97 of the record of appeal and it reads:-
“MOTION ON NOTICE
ORDER 3 RULES 9, 10 AND 14 OF THE RIVERS STATE HIGH COURT (CIVIL PROCEDURE) RULES, 2010 AS WELL AS THE INHERENT JURISDICTION OF THE COURT PRESERVED IN SECTION 6(6)(b) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED), SECTION 96 – 99 OF THE SHERIFFS & CIVIL PROCESS ACT.
TAKE NOTICE that this Honourable Court will be moved on the … day of March, 2020 at the hour of 9 O’clock in the forenoon or so soon thereafter as the Counsel to Defendants/Applicants can be heard praying for the following Orders: –
1. AN ORDER of this Honourable Court striking out the Originating Summons for being incompetent and for lack of jurisdiction;
2. AN ORDER of this Honourable Court striking out the Originating Summons for the Claimants/Respondent’ lack of locus standi and for failure to disclose a cause of action or any reasonable cause of action.
AND FURTHER TAKE NOTICE that the grounds upon which the Defendants/Applicants bring this motion are THAT:-

(i) The Claimants/Respondents not being members of the 1st Defendant/Applicant’s (Political Party) in terms of the Party Constitution lack locus standi to institute this suit.
(ii) The subject matter of this suit being domestic and internal affairs of a political party (namely the 1st Defendant/Applicant), are not justiciable in the law Court.
(iii) There is no reasonable cause of action or cause of action made out in this suit.
(iv) The suit is not initiated by due process as the mandatory conditions precedent of accompanying the suit with Affidavit of Verification is not complied with.
(v) The Honourable Court is all together lacking in jurisdiction to hear and determine this suit for interpretation of judgments of the High Court of Rivers State in Suit No. BHC/78/2018, Court of Appeal Judgment in CA/PH/461/2018 and Supreme Court of Nigeria judgment in SC/1333/2018.
(vi) The Honourable Court has no jurisdiction to entertain this action to interpret judgment of the Courts.
(vii) The suit was commenced without prior leave of this Honourable Court since it was to be served outside jurisdiction of this Honourable Court and at Abuja.

(viii) The present suit was served on the Defendants/Applicants outside jurisdiction at Abuja without prior leave of this Honourable Court.
(ix) The service of the Originating Summons and related processes on the Defendants/Applicants outside jurisdiction at Abuja is incompetent and a nullity.
AND for such further or other orders as this Honourable Court may deem fit to make in the circumstances.”

The aforesaid Motion was consolidated with the substantive matter and heard together and in dealing with the first issue raised in the Motion challenging jurisdiction, the learned trial Judge held as follows:-
“The first issue or point to consider is whether there must be leave of Court first to issue the Originating Summons for service out of jurisdiction.
I have considered the argument of both Counsel in this particular issue. Both Counsel cited Order 3 Rule 14 of the Rules of this Court 2010 and to appreciate the import of the said Order, I have decided to quote it.
Order 3 Rule 14 of the Rules of this Court 2010 provides that:
Subject to the provisions of the Sheriff and Civil Process Act, a Writ of summons or other

process issued by the Court for service in Nigeria outside Rives State shall be endorsed by the registrar of the Court with the following notice; “Thus Summons (or as the case may be) is to be served out of Rivers State and, in the … state.
It is clear that there is no provision for leave to be obtained before service of processes outside Rivers State and to import leave to be obtained is to add to the provision what is not there. To import Order 10 of the High Rules of Enugu State into the provisions of the High Court of Rivers State 2010 is clearly a misinterpretation of the Rules of this Court, 2010. All the English and Nigerian cases cited by the Learned SAN for the Defendants/Applicants are inapplicable to the Rules of this Court 2010 in Order 3 Rule 14.
The case of Tony Anthony (Nig) Ltd. V. NDIC (2011) 14 NWLR (Pt. 1269) page 37 where it was held that service of a process outside of jurisdiction, but within Nigeria does not require the leave of Court in my view is the correct position of the law. The case of B.B Apugo & Sons Ltd v. Orthopedic Hospital Management Board (2016) LPELR – 40598 (SC) decided by the Supreme Court also

support that leave of Court is not required for service of a process outside of jurisdiction, but within Nigeria.
The only time leave of Court is required is where service is to be effected outside Nigeria as in the Rules of this Court 2010 and the case of CBN v. Interstella Comm. Ltd. (2018) 7 NWLR 294 at 325 paragraphs A- B per Ogunbiyi, JSC.
This particular issue is to be resolved against the Defendants/Applicants since the Originating Summon served on the Defendants/Applicants complied with the Rules of this Court 2010.”

On whether the trial Court lacked the jurisdiction to hear the action, it being a suit relating to internal or domestic affairs of a political party, the learned trial Judge found against the Appellant as follows:-
“I have considered the submissions of both Learned SAN for the Defendant/Applicants and Learned Counsel for the Claimants/Respondents and nature of this suit which is on the non-compliance with the Constitution of the Defendants/Applicants and its guidelines. My humble opinion is that the later decisions of the Supreme Court cited by the Learned Counsel for the Claimants/Respondents has shown

clearly that this Honourable Court has the jurisdictional competence to entertain and determine this suit filed by the Claimants since it relate to the breach of the Defendants/Applicants constitution and guidelines.
Accordingly, this issue is hereby resolved against the Defendants/Applicants but in the favour of the Claimants/Respondents and I so hold.”

As to whether the lower Court lacked the jurisdiction to interpret another Court’s judgment, the learned trial Judge on pages 386 – 387 of the record stated thus:-
“I have considered the submissions of both Counsel on this issue. While the Defendants/Applicants’ Counsel is saying that the Claimants/Respondents came to Court in this case to seek interpretation of the judgments in the EXHs C, D and E, the Counsel for the Claimants/Respondents is saying that the Claimants came to enforce the said judgment given by the three levels of the Courts.
The word interpret means:
(1) to give meaning of;
(2) explain or make clear;
(3) to derive a particular understanding of
(4) give a certain explanation to
(5) construe and
(6) to translate orally

On the converse, enforce means to give effect to the judgment of a Court as was held in the cases of Ahmed v. FRN (2009) 13 NWLR (Pt. 1159) 536 and Nigerian Breweries V. Dumuje (supra).
It is clear that this Court has no jurisdiction to interpret judgments of Court and it is also clear that this Honourable Court has the jurisdiction to enforce judgments of Courts.
This suit of the Claimants/Respondents is not on the interpretation of the judgments in EXHs C, D and E but to enforce them.
Accordingly, this issue is to be resolved against the Defendants/Applications and in favour of the Claimants/Respondents and I so hold.”

In conclusion and on the reliefs sought and answers to questions posed for determination on the Originating Summons, the learned trial Judge said on pages 398 – 399 of the record of proceedings as follows:-
“I have considered all the submissions of the Claimants and Defendants’ Counsel on the list of Claimants additional authorities and the Defendant’s written response to fresh issues raised and list of additional authorities in support of the counter affidavit in opposition of the Originating Summons, and I totally

agree with the Learned Justice of the Supreme Court in the case of APC v. Umar (supra) that the question one(1) in the question before this case is a pre-election matter.
The case of Labour Party v. INEC (2009) 6 NWLR (Pt 1137) 315 at 337 paragraphs E-H, 338 paragraph A and 339 paragraph B has held that per I. F. Ogbuagu, JSC where he held that:
The Court below per Okoro, JCA at pg 232 of the records stated inter-alia as follows:
Where a general election has been held and there is a fresh start, for example a candidate who ought to have been part of the election was unlawfully excluded or there was no level playing grounds for all the candidates and that election is subsequently either cancelled by the regulating authority like INEC or nullified by an order of a Court or Tribunal, and a re-run or re-start is ordered, it is my humble view that the re-run or re-start refers to that general election cancelled or nullified, and not a bye- election I. F. Ogbuagu, JSC continued inter alia thus:
“The consequence of this is that all the candidates including the ones unlawfully excluded would now get back to the starting line for a fair and free

contest. It does not admit of any candidate since as it were the period for nomination and screening of candidates would have elapsed. The case of Honourable Mohammed Salisu A. Alwa’u & Anor v Abbas M. Yakubu & 2 Ors CA/K/EPSHA30/2003 (unreported) delivered on 6th November, 2003, was cited in support.”
It is clear that the three questions for determination in this Originating Summons have been answered in the positive and I so hold.
I must state in this judgment as was held in the case of Gadi v. Male (2010) 7 NWLR (Pt. 1193), page 225 … that, in a society which upholds the rule of law as a way of life, if any of the three arms of government; the executive, the legislative and the judiciary should be apolitical, let it not be the judiciary which has the exclusive responsibility of dispensing justice according to law. Where the issue before the Court smacks of service and enormous political interplay judicial pronouncements founded on the judex’s personal conviction as to where the justice and rightness of the matter lie would make the judiciary loses its authority and legitimacy.
It is also the law that a Court of

justice called upon to resolve a dispute, must neither play the role of the artful dodger (or Dickensian creation) nor indulge in “diplomatic double talk” (intending to hurt no one) but must seize the bull by the horn and hand down the decision the dispute demands. See the case of Gyawu v. Asare II (1991) 1 WASC (Pt 7) 171.
From what I have stated in this judgment, the Claimants have proved that the questions in the Originating Summons should be answered in the positive and I so hold.
Accordingly, I hereby grant all the reliefs Nos. 1 to 6 on the Originating Summons.”

The Appellants were aggrieved by the findings of the lower Court against them and have by NOTICE OF APPEAL dated and filed on the 10th June, 2020 appealed to this Court on five grounds which without their particulars are as follows:-
“GROUND ONE
The learned trial Judge erred in law in holding that the provisions of the Rivers State High Court (Civil Procedure) Rules does not provide for prior leave to issue – and serve the Originating Summons in this suit outside jurisdiction, in Abuja.
GROUND TWO
The learned trial Judge misdirected himself in law when

he held that the instant suit is not one of interpretation of the judgments but for the enforcement of the judgments subject matter of the Originating Summons.
GROUND THREE
The learned trial Judge was without jurisdiction and erred in law when he enforced the judgment in BHC/78/2018: Ibrahim Umah & 22 Ors. v. All Progressives Congress by granting all the reliefs sought by the Respondents on the Originating Summons.
GROUND FOUR
The learned trial judge had no jurisdiction to entertain the suit of the Respondents since it borders on internal affairs of a political party and for which internal party dispute resolution mechanism as enshrined in the Constitution of the party was utilized and not exhausted by the Respondents before filing the suit.
GROUND FIVE
The learned trial Judge erred in law when he granted the reliefs barring every other party member of the 1st Appellant who did not pay for nomination form as at 2018 from contesting the congress of the 1st Appellant in Rivers State for the election of her officers and thereby occasioned a miscarriage of justice.”

The Appellants are seeking from this Court the following reliefs:-
RELIEFS SOUGHT FROM THE COURT OF APPEAL
(i) AN ORDER allowing the appeal and setting aside the judgment.
(ii) AN ORDER setting aside the judgment of the trial Court on the preliminary objection, wherein the Court dismissed the preliminary objection of the Appellants and assumed jurisdiction.
(iii) AN ORDER sustaining the preliminary objection and consequently striking out Suit No: PHC/4634/2019: Dele Moses & 9 Ors vs. All Progressives Congress & Anor for want of jurisdiction OR
(iv) AN ORDER of this Court that the High Court of Rivers State, presided over by Honourable Justice George Omereji, Judge, lacks the jurisdiction to entertain Suit No: PHC/4634/2019: Dele Moses & 9 Ors vs. All Progressives Congress & Anor.
(v) AN ORDER dismissing Suit No: PHC/4634/2019: Dele Moses & 9 Ors vs. All Progressives Congress Anor for lacking in merit.”

The Appellants Brief of Argument dated 24th day of July, 2020 was filed on 24th July, 2020 and was deemed properly filed and served on 15th October, 2020.

The Respondents’ Brief of Argument dated 17th October, 2020 and was filed on 19th October, 2020.

It is here pertinent to say that the RESPONDENTS incorporated into their Respondents’ Brief of Argument, NOTICE OF PRELIMINARY OBJECTION against the hearing of this appeal on the merit. The NOTICE OF PRELIMINARY OBJECTION reads:-
“3.0 NOTICE OF PRELIMINARY OBJECTION
3.1 Prior to the hearing of this appeal, the Respondents shall raise a Preliminary Objection that this Appeal has become statute barred due to effluxion of time; that the Court of Appeal lacks jurisdiction to entertain this Appeal; and shall pray the Honourable Court to strike out this Appeal.
The Notice of Preliminary Objection is predicated on the following grounds:
(i) This Appeal is a pre-election matter within the ambit of the decision of the Supreme Court in APC vs. Umar (2019) 18 NWLR (Part 1675) 564 at 575 paragraphs G to H and the recent Ruling of the Court of Appeal, Port Harcourt Division of July 22, 2020 in Appeal No: CA/PH/122M/2020: Okirigwe Jason Obi & Anor. vs. Dele Moses & 11 Ors. (Unreported Certified Ruling attached for ease of reference).
(ii) Appeal No. CA/PH/244/2020 was filed on 10/6/2020 and by the provisions of

Section 285(12) Constitution of Federal Republic of Nigeria 1999 (as amended) and the judgment of the Supreme Court in Okechukwu vs. INEC (2014) 17 N.W.L.R. (Part 1436) 255 at 284 to 285 paragraphs D to A, the 60 days prescribed time by Section 285 (12), 1999 Constitution of the Federal Republic of Nigeria (as amended by the 4th Alteration Act, 2017) for the hearing and determination of the appeal elapsed on August 8, 2020.
(iii) There is no provision for enlargement of time fixed by the Constitution and the provisions of the Rules of Court for departure from its Rules cannot be invoked in a Pre-Election matter. ANPP vs. Goni (2012) 7 NWLR (Part 1296) 147 at 182; Nyako vs. Adamawa State House of Assembly (2017) 6 NWLR (Part 1562) 347.
(iv) The jurisdiction of the Court is donated by statute and not by the Court itself. This Court cannot extend or expand the time assigned or stipulated by the Constitution for the performance of an act.
(v) Appeal No. CA/PH/244/2020 has become statute barred and this Court lost its jurisdiction to determine this appeal on August 8, 2020.
(vi) Appeal No. CA/PH/244/2020 has become academic and of no practical value.”

The Appellant filed Appellant’s Reply Brief to the Respondent’s Brief of Argument on 20th October, 2020.

without it, the “labourers” therein, that is both litigants and Counsel on the one hand and the Judge on the other hand, labour in vain.”
See also CHIEF DANIEL AWODELE OLOBA VS ISAAC OLUBODUN AKEREJA (1988) 2 NSCC 120 at 129 per OBASEKI, JSC who held thus:
“The issue of jurisdiction is very fundamental as it goes to the competence of the Court or Tribunal. If a Court or Tribunal is not competent to entertain a matter or claim or suit, it is a waste of valuable time for the Court to embark on the hearing and determination of the Suit, matter or claim. It is therefore an exhibition of wisdom to have the issue of jurisdiction or competence determined before embarking on the hearing and determination of the substantive matter. The issue of jurisdiction being a fundamental issue, it can be raised at any stage of the proceedings in the Court of first instance or in the Appeal Court. This issue can be raised by any of the parties or by the Court suo motu if the parties fail to draw the Court’s attention to it. See ODIASE VS AGHO SUPRA. There is no justice in exercising jurisdiction where there is none. It is injustice to the Law, to the Court and to the parties so to do.”

A Preliminary Objection filed by a Respondent as contemplated under Order 10(1) of the Court of Appeal Rules 2016 must be capable of bringing to an abrupt end the appeal against which Notice of Preliminary Objection is filed. The said Order 10 Rule 1 of the Court of Appeal Rules 2016 provides:-
“10(1) A Respondent intending to rely upon a preliminary objection to the hearing of the Appeal shall give the Appellant three clear days notice thereof before the hearing setting out the grounds of objection and shall file such notice together with twenty copies thereof with the Registry within the same time.”
See:
1. HUSSENI & ANOR VS MOHAMMED & ORS (2014) 12 SCM. 230;
2. LAFIA LOCAL GOVERNMENT VS THE EXECUTIVE GOVERNOR OF NASARAWA STATE & ORS (2012) 11 NWLR (PART 1328) 94 AT 124 D – F per OLABODE RHODES-VIVOUR, JSC who said:-
“A preliminary objection can be taken against the hearing of an appeal and not against the competence of the Brief of a party to the appeal. The purpose of a preliminary objection is to contend that the appeal is fundamentally defective or incompetent. If it succeeds the hearing of the appeal abates.”

I will therefore consider the NOTICE OF PRELIMINARY OBJECTION raised by the Learned Counsel to the Respondents H. A. BELLO, ESQ who stated that the objection was brought pursuant to Section 285(12) and 14(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) by 4th Alteration Act, 2017. The Respondents contended that the appeal has become statute barred due to effluxion of time and that this Court lacks the jurisdiction to entertain the appeal. He further stated that the grounds and particulars of the appeal border pre-election matter. He relied on the case of APC V UMAR & ORS (2019) 8 NWLR (PART 1675) 564 AT 577 G – H and the Ruling of this Court in Appeal Number CA/PH/122M/2020: OKIRIGWE JASON OBI & ANOR VS DELE MOSES & ORS pages 24 – 25 per AWOTOYE, JCA who held that the subject matter of the suit culminating in this appeal is a pre-election matter on the authority of APC V UMAR (supra). The judgment of this Court was delivered on 22/7/2020 in an application of OKIRIGWE JASON OBI & ANOR who sought leave to appeal the lower Court’s judgment as interested parties.

The learned Counsel to the Respondents also informed this Court that on 28/9/2020, the Supreme Court in appeal No. SC 497/2020; OKIRIGWE JASON OBI VS DELE MOSES, conclusively found that Suit No. PHC/4634/2019 is a pre-election matter. That under the doctrine of stare decisis this Court is bound by the two decisions of the Supreme Court relying on the case of MAILANTARKI VS TONGO & ORS (2017) LPELR 4247 (SC) per EJEMBI EKO, JSC.

He submitted that the decision of this Court in the case of HARUNA VS BALA & ORS (2019) LPELR – 49097 CA pages 14 – 18 does not override the Supreme Court decision in APC V UMAR (supra). That this Court is bound by its Ruling in CA/PH/122M/2020 which was based on a Motion on Notice filed by Applicants therein seeking leave to appeal as interested parties against the judgment of High Court of Rivers State in PH/4634/2019: DELE MOSES & ORS V APC & ANOR delivered on 9/6/2020, from which this appeal emanated.

He submitted that since the instant appeal is based on a pre-election matter, it is caught by Section 285(12) of 1999 Constitution as amende d which stipulates that an appeal from the decision of a Court in a pre-election

matter shall be heard and determined within 60 days from the date of filing of the appeal. That the Notice of Appeal in this matter was filed on 10th day of June, 2020 and that being a pre-election appeal from High Court to the Court of Appeal must be heard and determined within sixty days and that this appeal ought latest to have been determined by 8th August, 2020 and that it is now statute barred by effluxion of time in that this Court has lost jurisdiction to adjudicate on the appeal anymore. He relied on the case of OKECHUKWU V INEC (2014) 17 NWLR (PART 1436) 255 AT 284 – 285 D – A. He urged the Court to strike out the appeal.

In reaction to the Respondents’ learned Counsel’s submissions on the Notice of Preliminary Objection, the learned Senior Counsel to the Appellant strongly contended that the action leading to this appeal is not pre-election matter and as such this appeal is not caught by Section 285(12) and (14) of the Constitution of the Federal Republic of Nigeria notwithstanding that the appeal was filed on 10/6/2020.

That the subject matter of the Suit leading to this appeal is one challenging the decision of the Appellant to invite

all its members to purchase nomination forms preparatory to Ward Congress to elect executive officers of its Rivers State Chapter and cannot therefore under any stretch of imagination be tagged pre-election matter.

That Section 285(14) of the Constitution relied upon by the Respondents is erroneous and does not support the position of Respondents. He reproduced the same provision of the Constitution to submit that jurisdiction is generally granted to a Court vide statute. It is the submission of learned Silk to the Appellant that Section 285(14)(a) – (c) of the said Constitution only employed the phases such as “means”, “pre-election” and aspirants on way and manner to construe a statute. He relied on the cases of:-
1. AZUBUOGU V ORANEZI (2018) 5 NWLR (PT. 1623) 447 AT 459;
2. UTIH & ORS V ONOYIVWE & ORS (1991) LPELR (3436) SC 96 – 97 D – and
3. IBRAHIM V STATE (1991) LPELR 1404 SC 38 – 39A to submit that the bounds of what constitutes pre-election matter are clearly defined in Section 285(14) (a) – (c) of the Constitution.

He referred to the reliefs sought at the lower Court by the Respondents and facts deposed in the

Affidavit in Support of the Originating Summons.

That it is clear “on the Respondents own ipse dixit, that the suit leading to this appeal borders on the complaint of the Respondents that the Appellant had invited its members to purchase nomination forms for Ward Congress to elect its leaders at its RIVERS STATE CHAPTER. If anything, and as has been shown in the Appellant’s Brief, the Suit borders on the internal affairs of a political party. It does not qualify as pre-election matter.”

The Senior Counsel also dwelt on the definition contained in Section 285(14) of 1999 Constitution to submit that the Section talks of “aspirant” but that the subject matter of the action herein is about Congress to elect officers of the party at the State Chapter of the Party in Rivers State. That 60 days stipulation in the Constitution for this Court to determine an appeal is not applicable in this case which he said is not a pre-election matter but intra party dispute relating to election of those who will be State Officials or Officers of the Party at State Chapter of Appellant.

On who an “Aspirant” is, he relied on plethora of cases including the cases of:

HARUNA V BALA & ORS (2019) LPELR – 49097 PAGES 14 – 18;
2. PDP V SYLVA (2012) 13 NWLR (PART 1316) 85 AT 126 A -E;
3. ARDO V NYAKO (2014) LPELR (22878) SC P. 31 A- B;
4. ALFA V PDP & ORS (2019) LPELR – 47685 (CA) PAGES 28 – 29 B- C.

He also stated that recently the Supreme Court considered and determined what constitutes a pre-election matter and the interpretation of Section 285(14) of the Constitution of the Federal Republic of Nigeria 1999 as amended and Sections 84 – 87 of the Electoral Act, 2010 as amended. He relied on the cases of APC V LERE (2020) 1 NWLR (PART 1705) 254 AT 284 – 285 H – D and APC V UDUJI (2020) 2 NWLR (PT. 1709) 541 AT 565 C – D.

That these decisions were handed down by the Supreme Court after the decision in APC V UMAR (SUPRA). He went into extensive dissection of UMAR V APC (SUPRA) and contended that the facts of APC V UMAR are quite different from the facts in this appeal.

That by Article 20(iii) of the Constitution of 1st Appellant, it is glaring that the Ward Congress election is geared toward election of executive officers of a Political Party (APC) and nothing more.

On decision of this Court referred to earlier by Respondents viz CA/PH/122M/2020 OKIRIGWE JASON OBI & ANOR VS DELE MOSES & ORS delivered on 22/7/2020, Learned Senior Counsel said the Respondent failed to refer to the decision of this Court in this same matter of 30/7/2020 where he said this Court held that this appeal is not a pre-election matter.

He urged the Court to hold that this appeal is not an appeal from a pre-election matter but one from an internal party disputes and consequently dismiss the Preliminary Objection with what he called “with utmost ignominy”.

RESOLUTION OF THE NOTICE OF PRELIMINARY OBJECTION
The focal point or pivotal issue that calls for determination on the Notice of Preliminary Objection filed by the Respondents is whether the subject matter of the suit leading to this appeal is a pre-election matter governed by Section 285 (9) – (14) of the Constitution of the Federal Republic as amended.

The fierce argument of H.A. Bello Esq., for the Respondents is that it is a pre-election matter and to that extent any appeal against the decision of lower Court in this matter must be heard and determined within 60 days.

However the Learned Senior Counsel to the Appellant very strongly submitted the contrary and admonished this Court to adjudicate on the appeal. In paragraphs 2.20 and 2.21 pages of the Appellant’s Reply Brief to the Respondent’s Brief of Argument he encapsulated his position thus:
“2.20 We therefore submit that in so far as the instant suit relates to yet to be conducted ward congresses, and not connected to any general election declared by INEC, the appeal cannot be referred to as a pre-election matter. The absence of “aspirants” “relating to general elections” and “primaries” take the instant appeal away from the application of Section 285 (14) (a) – (c) of the Constitution. We urge my Lords to so hold.
2.21 We submit further that Section 285 (14) of the Constitution has its roots in Section 87 (9) of the Electoral Act, 2010 (as amended) and all similar provisions of the earlier Electoral Laws in the Country. They ought to be read together to establish the real purpose thereof.”

Now Subsections 9 – 14 of Section 285 of the Constitution of the Federal Republic of Nigeria 1999 as amended are as follows:

has not been complied with by a political party in respect of the selection or nomination of candidates for an election;
(b) an aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the selection or nomination of candidates and participation in an election; and
(c) a political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election.”

the case to the lower Court, since it will amount to sheer academic exercise and will be a waste of the precious time of that Court. See A.N.P.P. v. Goni & Ors (supra). The time for the Court below to determine the appeal, if so remitted to it, has long lapsed hence it is no more clothed with jurisdiction to entertain the matter. I therefore agree entirely with the learned respondents’ counsel’s submission on that. In view of the provisions of Section 285(11), (12) and (14) of the 1999 Constitution (as amended), this present appeal has become academic since it is hinged on appeal No. CA/PH/461/2018 which as I stated earlier, has become statute-barred due to effluxion of time. It is trite and well settled law, that a matter or suit becomes academic when it becomes purely theoretical and is of no practical value to the plaintiff or appellant even if judgment is given in his favour. See: Plateau State v. A.G Federation (2006) 3 NWLR (Pt.967) 346 at 419; C. P. C. v. I.N.E.C (2011) LPELR 8257 (SC); (2011) 18 NWLR (Pt. 1279) 493. The relief sought in this appeal even if granted by remitting appeal No. CA/PH/461/2018 to the Court below, will not be of any

meaningful remedy since as I stated earlier, that Court is bereft of jurisdiction. It is my candid view therefore, that this ground of the preliminary objection is well taken and is hereby sustained.
The next ground of the objection is whether the appeal before the Court below i.e. Appeal No. CA/PH/461/2018 is a pre-election matter as would have come under the provisions of Section 285 of the 1999 Constitution (as amended).
The learned senior counsel for the appellant submits that, the reliefs sought in the suit he filed before the trial Court vide the originating summons pertained to holding of congresses to elect leaders of political party and therefore the reliefs sought in that suit could not be regarded to as pre-election matter because reliefs sought in the suit relates only to election of the executive members of the party and that it is intra-party activities. With due deference to the learned senior advocate, I think it would be apt to say that the word “election” means the process of choosing by popular votes, a candidate for political office in a democratic Government. See: Ojukwu v. Obasanjo (2004) 12 NWLR (Pt. 886) 169,

Buhari v. Obasanjo (2005) 2 NWLR (Pt.910) 241. It goes without saying therefore, that any preparation or process embarked upon by a political party in preparation for an election can as well be regarded as “PRE” – election” or prior to the election or before the election as opposed to post-election which would obviously relate to any exercise or process done after the election. To my mind therefore, the process or exercise embarked upon by a political party such as congress, nomination exercise etc are all pre-election matters or exercise. The instant suit being an exercise before or prior to election is therefore caught up by or is within the purview of Section 285(14) of the Constitution (4th Alteration Act), 2017.
I have stated earlier that learned counsel for the respondent H. Bello Esq., who is the objectioner, took the stance that the appeal is a pre-election matter and therefore Section 285(14) of the Constitution (4th Alteration Act) of 2017 which provides that notice of appeal in pre-election mater must be filed within 14 day, from the date the judgment of the High Court was delivered. He argued that this appeal is therefore affected by the said provisions

as it was filed outside the period stipulated by the law. I can’t agree more.
On his part, Mr. L.O. Fagbemi, SAN of learned senior counsel for the Appellant on the other hand, submitted that it is not a pre-election matter especially if one looks at the reliefs sought adding that Section 285(14) of the Constitution (as amended) by 4th Alteration Act does not or is not applicable since it does not relate to pre-election matters.
I am inclined to agree with the submission of the learned counsel for the respondents that the exercise involved in the congresses covers or includes activities which are or should be done preparatory to an election, be it for the selection of officers to be members of the executive of the party, or as processes to elect or to prepare and qualify those elected at the congresses to ultimately vie for elective offices to represent the party in the legislature at either Local Government, State or at Federal level. Such exercises therefore to my mind are pre-election exercise or matter to which the provisions of Section 285(14) squarely applies. In this regard, I am of the firm view that the second ground of the preliminary

objection also has substance and is therefore hereby upheld. In the result the preliminary objection having been upheld by me as being meritorious, it is hereby sustained and allowed.
It is instructive to note that the appellant herein, prayed this Court to remit this appeal to the Court of Appeal (i.e. Court below) for it to determine same on the merit. As I stated supra, the preliminary objection raised by the respondents’ learned counsel has merit and accordingly sustained. It is trite law, that where a preliminary objection in an appeal succeeds and is sustained there would be no need to proceed to consider the arguments proffered by learned counsel to the parties on the issues for determination of the appeal. See Attorney-General of the Federation v. A.N.P.P & Ors. (2003) 12 SCNJ 81182; or (2003) 18 NWLR (Pt.851) 182; NEPA v. Ango (2001) 15 NWLR (Pt.737) 627; Ralph Uwazurike v. A.-G., Federation (2007) 8 NWL2 (Pt. 1035) 1. I therefore see no need to consider this appeal. On the whole, the preliminary objection is upheld or sustained and is accordingly allowed.”
The suit over which the present appeal emanates is a fall out of the decision

of Supreme Court over suit BHC/78/2018, CA/PH/461/2018 and SC/1333/2018 now reported in (2019) 8 NWLR (Part 1675) 564. The Supreme Court has firmly held in the said case of APC v. UMAR supra that it is a Pre-election matter as can be seen from the profuse quotation of the decision of apex Court on what a pre-election matter means.

It is also pertinent to state (our attention was drawn to it by the Respondents) that after the judgment of lower Court against which this appeal was brought, two persons namely OKIRIGWE JASON OBI and NWA DAVID SIMEON S. J. vide a motion marked CA/PH/122M/2020 sought for leave to appeal the judgment of the lower Court delivered on 9/6/2020 (over which the current appeal is pending) in suit PHC/4634/2019 between DELE MOSES & ORS v. APC & ANOR. This Court per AWOTOYE JCA on the said application seeking to appeal the judgment as interested parties held as follows:
“From the averments in the affidavit and the position of the Supreme Court in ALL PROGRESSIVES CONGRESS VS. UMAR (supra), this matter is a pre-election matter. I have considered the arguments of learned Counsel for the Applicants to the effect that for a matter

to be a pre-election matter, the processes being challenged must be part of the guidelines prescribed by INEC under Electoral Act. The submissions of learned Counsel even though brilliant were made before the 5 men panel of the Supreme Court in APC vs. UMAR (supra). The facts leading to the appeal in APC vs. UMAR (supra) are very similar to the facts leading to this appeal. The same arguments raised in the said appeal are the ones raised in this appeal.
The learned Justices of the Apex Court in APC vs. UMAR (supra) deeply considered the amplitude of Section 285(14) of the Constitution of the Federal Republic of Nigeria (as amended). His Lordship in his leading judgment had this to further say on the submissions of L. O. Fagbemi, SAN, Learned Senior Counsel for the Appellant on this same issue:
“I am inclined to agree with the submission of the learned counsel for the Respondents that the exercise involved in the congresses covers or includes activities which are or should be done preparatory to an election, be it for the selection of officers to be members of the executive of the party, or as processes to elect or to prepare and qualify those

elected at the congresses to ultimately vie for elective offices to represent the party in the legislature at either Local Government, State or Federal level. Such exercises therefore to my mind are pre-election exercise or matter to which the provisions of Section 285(14) squarely applies.” The facts in APC vs. LEKE (2019) 5-6 S. C. (pt. 11) page 59 are distinguishable from the facts of this appeal.
The Apex Court in its unquestionable wisdom in APC vs. UMAR (supra) has given the word pre-election its broadest meaning. A pre-election as opposed to a post-election matter. We are bound by this interpretation.
The Applicants seek for leave to appeal against the judgment delivered more than 37 days ago. This cannot be done unless time is extended beyond 14 days from the delivery of the Judgment. This would be unconstitutional and not within the jurisdiction of this Court. See Section 285(11) of the Constitution (as amended).”

The Appellants seeking to appeal as interested parties were aggrieved by the decision of this Court and appealed further to Supreme Court in suit SC.497/2020. The said Appellants Learned Counsel conceded before the Supreme

Court as evident by decision of apex Court of 29th September, 2020 that the appeal arose from a pre-election matter, as could be seen from quotation above.

I am also conscious of the fact that the Learned Senior Counsel to the Appellant TUDURU U. EDE, SAN, also strongly relied on the case of APC v. UDUJI (2020) 2 NWLR (PART 1709) 541 at 565 C – D delivered by the apex Court on 21/6/2020 subsequent to the case of APC v. UMAR supra.

With considerable respect to the Learned Silk, the portion of the decision quoted by him in paragraph 2.19 page 5 of his Appellant Reply brief is not helpful to the Appellant and the facts of APC v. UDIJI (2020) 2 NWLR (PART 1709) 51 are quite different and distinguishable from the facts of the subject matter in this appeal. There is nothing in the said APC v. UDUJI (supra) derogating from the comprehensive definition of Pre-Election in APC v. UMAR (Supra).

The record of appeal in this matter was transmitted to this Court on 20-7-2020 while the Appellant’s Brief of Argument was filed on 24/7/2020. The said record of appeal and the Appellants Brief of Argument were regularized upon the application of Appellants filed on

24/7/2020 and heard on 15/10/2020.

This appeal having emanated from a pre-election matter ought to have been disposed off within 60 days pursuant to Section 285 (12) of the Constitution of the Federal Republic of Nigeria 1999 as amended.
This Court has lost jurisdiction to adjudicate on the appeal herein See:
1. ADEBAYO ONI VS JOHN KAYODE FAYEMI & ORS (2020) 15 NWLR (PART 1746) 59 at 80 H to 81 A – D per SANUSI JSC who said:
“It is instructive to note that the Fourth Alteration Act No.21 of 2017 has amended the provision of Section 285 of the 1999 Constitution by inserting Subsection 9 which provides that:
“any pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of. In other words, any suit must be filed within 14 days from the date the cause of action occurred.”
In this instant case, as I stated above, the pre-election which is the cause of action and is also the subject matter of the suit filed at the trial Court, took place on 12th May, 2018. Therefore, for the suit to come within the period specified in the 4th Alteration Act

which is 14 days, the suit must have been filed at the trial Court latest by the 26th of May, 2018. The appellant herein, as plaintiff at the trial Court, filed his suit at the trial Court on 22 of June, 2018. That is to say, it was filed about 42days after the occurrence of the cause of action on 12th May, 2018. It can therefore be said that by the provisions of the 4th Alteration Act which has its commencement date as 17th day of June, 2018, the suit had become statute barred as at the date it was filed. The trial Court is right from the outset, in error when it entertained and determined the suit which said suit is incompetent. It is therefore bereft of jurisdiction to entertain the incompetent suit. It also goes without saying that the Court below and indeed this apex Court, lack jurisdiction to entertain and determine the appeal.”
2. OBAYEMI TOYIN VS PDP & ORS (2019) 9 NWLR (PART 1676) 50 at 60 E – H per I. T MUHAMMAD JSC now CJN who said:
“In my consideration of the 3rd and 4th respondents’ preliminary objection, I find it convenient at this initial stage to bring it to the fore that the matter in litigation is a pre-election

matter. Election matters are considered special, almost governed by their own special laws. As reflected in the introduction to this judgment, the parties litigated in the Courts below over primary elections conducted by the 1st respondent on the 29th of December, 2014. At the trial Court, judgment was delivered in favour of the appellant. At the Court of Appeal (Court below), the trial Court’s judgment was set aside by the Court below when it adopted the judgment of a sister appeal in appeal No. CA/EK/76/2016. My lords, Section 285(13) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration No, 21) Act, 2017, provides as follows:
“An appeal from a decision of a Court in a pre-election matter shall be heard and disposed of within 60 days from the date of filing of the appeal.”
My noble Lords, the appellant’s notice of appeal was filed on 23/3/18. The appellant’s brief of argument was filed on 16/5/18 but served on the 1st respondent on 7/6/18. Thus, these processes were served and filed outside the required time limited by the law. This Court is certainly divested of jurisdiction to entertain the appeal, not having been

heard and determined within 60 days of filing of the notice of appeal.”

The Notice of Objection filed by the Respondents challenging of the jurisdiction of this Court to adjudicate on the Appellants appeal is well founded and it is HEREBY UPHELD.

Consequently, the Appellant’s appeal which is founded on the Notice of APPEAL dated and filed on 10th day of June, 2020 is HEREBY STRUCK OUT same having been caught by the provisions of the Constitution of the Federal Republic of Nigeria 1999 as amended by the Fourth Alteration, No. 21, Act 2017 particularly Section 285 (12) thereof.
There will be no order as to costs.

However, it must be stated that the law is now further settled by the ultimate Court in the land, the apex Court, to the effect that where this Court finds that it has no jurisdiction to adjudicate on an appeal, it is in the interest of justice that this Penultimate Court should also proceed to consider the merit of the appeal in case this Court is found to be wrong in its conclusion on the issue of jurisdiction to entertain and determine the appeal. It will avail the Supreme Court of a global view of the issues touching and

concerning the jurisdiction of this Court to adjudicate on the appeal and matters pertaining to the merit of the appeal. There would be no need to send the appeal back for a re-hearing if it turns out that this Court is wrong. See:-
1. ISAAC OBIUWEUBI V. CENTRAL BANK OF NIGERIA (2011) LPELR – 2185 SC AT 23 PER RHODES-VIVOUR, JSC, who said:
“Furthermore when there is an appeal on the substantive matter to the Court of Appeal and issue of jurisdiction is raised, the Court of Appeal should make a finding on jurisdiction and if it finds that it has no jurisdiction it should go ahead and say so and give a considered judgment on the substantive matter. This is so because as the penultimate Court it must make its decision on the substantive appeal known to the Supreme Court since its Ruling on jurisdiction may very well be wrong. See Ebba v. Ogodo & Anor (1984) 1 SCNLR P. 372; Jamgbadi v. Jamgbadi (1963) 2 SCNLR 311.”
2. ALHAJI JIBRIN ISAH V. INEC & ORS (2014) 12 SCM (PART 2) 297 AT 335 G – I TO 336 A per OLABODE RHODES-VIVOUR, JSC.

The Learned Counsel to the Appellants O. C. Eyiba, Esq., who settled their brief of argument which

was adopted by Learned Senior Counsel TUDURU EDE, SAN nominated two issues for determination of the appeal namely:
3.1(b) Whether the learned trial Judge was wrong in assuming jurisdiction over the suit and granting the reliefs contained in the judgment against the 1st Appellant? Grounds 1 – 4 of the grounds of appeal
(b) Whether the learned trial Judge erred in law in granting the reliefs barring every other party members of the 1st Appellant who did not pay for Nomination Forms in 2018 contesting 1st Appellant’s Congresses for election of her officers in Rivers State? Ground 5 of the grounds of appeal.

The Learned Counsel to the Respondents, H. A. Bello Esq., also formulated two issues as follows:
5.1 Upon a sober reflection on the circumstances of this appeal, the Respondents formulate two issues for determination to wit:
(a) Whether the learned trial Judge was right in assuming jurisdiction in Suit No. PHC/4634/2019 and granting all the reliefs sought by the Respondents.
(b) Whether the trial Judge erred in Law in granting all the reliefs sought by the Respondents.

I am of the solemn opinion that the issues distilled for determination by the Appellants’ Learned Counsel are apposite for consideration and determination of the appeal. The two issues will be taken together.
(a) Whether the learned trial Judge was wrong in assuming jurisdiction over the suit and granting the reliefs contained in the judgment against the 1st Appellant? Grounds 1 – 4 of the grounds of appeal.
(b) Whether the learned trial Judge erred in law in granting the reliefs barring every other party members of the 1st Appellant who did not pay for Nomination Forms in 2018 contesting 1st Appellant’s Congresses for election of her officers in Rivers State? Ground 5 of the grounds of appeal.

Under issue (a) as to whether the Learned trial Judge was wrong in assuming jurisdiction over the suit and granting the reliefs contained in the judgment against the 1st Appellant, it is the submission of the Appellant’s Learned Counsel that the learned trial Judge wrongly assumed jurisdiction over the suit notwithstanding that the subject matter of action and issues raised therein were not within the jurisdiction of lower Court and are not justiciable. Attention of this Court was drawn to

pages 95 -187 of the record containing the conditional Appearance and Notice of Preliminary Objection filed challenging the competence of the Respondents Originating Summons and the lower Court’s jurisdiction to adjudicate on Respondents suit.

The Learned Counsel to the Appellant stated that the lower Court did not consider the provisions and contentions of Appellant to the effect that provisions of High Court law of Rivers State and relevant Rules of Court were not considered. That the said law and Rules of Court provide for service outside the jurisdiction processes out of the High Court of Rivers State issued the Rivers State. He relied on Order 3 Rule 14 of the High Court Rules of Rivers State and Section 14 of the Rivers State High Court Law, Cap 12.

That relevant Rules and Law aforesaid have been interpreted to the effect that prior leave Ex Parte to issue Originating Summons meant for service out of Rivers State must be first made to the High Court of Rivers State and leave must be obtained before any Originating Process issued out of Rivers State could be served on a Defendant. He relied on the case of ADEPEGBA V ANI (2015) LPELR 40706 (CA) per OREDOLA, JCA.

He submitted that the lower Court assumed jurisdiction over the suit notwithstanding that the Respondents flagrantly violated the clear provisions of Section 97 of the Sheriffs and Civil Process Act. He referred to the holding of the lower Court on page 385 of the record.

The learned Counsel submitted that since the subject matter of the suit relates to internal affairs or domestic issues of a Political Party the lower Court is devoid of jurisdiction. He referred to paragraphs 3 and 4 of the Supporting Affidavit pertaining to Membership Cards attached in respect of the Respondents. That the Respondents also failed to exhaust the internal remedies provided in APC Constitution with respect to the alleged infractions of Respondents rights as members of APC before they instituted the action leading to this appeal. That the Respondents ought to have channeled their complaints to Zonal Committee of 1st Appellant. He relied on the cases of ONUOHA V OKAFOR (1983) 2 SCNLR 244 AT 245 and UFOMBA V INEC (2017) LPELR (PART 1582) 75.

The lower Court cannot run the internal affairs of a Political Party for it. That the only exception to

the principles laid down by the Supreme Court in the case cited are contained in Section 33 and 87(10) of the Electoral Act 2010 as amended and Section 285(14) of the Constitution of the Federal Republic of Nigeria 1999 as amended.

He submitted that the lower Court was asked to dabble into issues of Ward Congresses to be conducted in Rivers State by the 1st Appellant and that lower Court went into a political question which he said is not justiciable. That such internal issues of Political Party are within the exclusive province of the party relying on MADUEMEZIA V UWAJE & ORS (2015) LPELR 24542 (CA) per OGAKWU, JCA.

The learned Counsel also contended that the lower Court was wrong in its findings on page 387 paragraph 1, page 394 last paragraph and page 396 paragraphs 2, 3 and 5 thereof where the learned trial Judge held that the Respondents’ suit is not on the interpretation of judgments marked Exhibits C, D and E but that the trial Court was enforcing the judgments.

The learned Counsel to the Appellants said procedure for enforcement of judgment is through the specific provisions in Judgment Enforcement Rules and Procedure outlined in

Order 42, Rule 9 – 12 of High Court Rules of Rivers State and Sheriffs & Civil Process Act. That the lower Court was wrong in holding that it was just enforcing judgment and not interpreting the judgments. That Originating Summons cannot be used to enforce judgment. He relied on the case of INCORPORATED TRUSTEES OF NIGERIA GOVERNORS FORUM & ANOR VS RIOK NIGERIA LTD & ANOR LPELR 44915 CA per IGE, JCA.

He further submitted that the three questions donated for determination in the Originating Summons are neither for the construction of any will, deed, statement or any written instrument. That there were clear invitation to the Court to consider the judgments as contained in the questions submitted to lower Court for answers. That upon perusal of Exhibits C, D and E annexed to the Originating Summons, the suit of the Respondents did not disclose any cause of action or reasonable cause of action thus according to learned Counsel the lower Court was wrong in its findings against the Appellants.

He stated that Exhibits C, D and E do not create any obligation on the part of the 1st Appellant and also did not direct it to allow Respondents to

contest Ward Congresses of the 1st Appellant with Nomination Forms in 2019 for Ward Congresses.

According to learned Counsel since those judgments do not create the rights or obligations which Respondents asserted in paragraphs 5, 6, 9, 10, 14, 15, 17, 18, 19, 20 and 21 of Affidavit in Support of Originating Summons, the lower Court lacked jurisdiction. He relied on Order 15 Rule 18(1)(a)(3) of High Court Rules of Rivers State.

That doctrine of Res judicata is also available against the Respondents because according to learned Counsel the Claimants in suit BHC/78/2018 approached the trial Court in Suit PHC/3098/209: IBRAHIM UMAH & ORS V APC thus making exactly the same claims being sought in this suit.

That the issues in contest in this suit having been resolved in a previous action makes the current suit a re-litigation of those issues all over again. That it also made the lower Court incompetent to adjudicate on this matter. He relied on IGBEKE V OKADIGBO (2013) 12 NWLR (PT. 1368) 225 AT 254. That the suit is an abuse of Court process relying on SARAKI VS KOTOYE (1992) 9 NWLR (PT. 264) 156 AT 188 E – G. He urged the Court to resolve issue 1 against Respondents.

Under issue 2 as to whether the lower Court was wrong in granting reliefs barring every other party members of 1st Appellant from contesting for positions in the intending congresses, the Learned Counsel to the Appellant submitted the reliefs granted to Respondents are not supportable in law. That the judgment of HON. Justice C. Nwogu did not make orders insinuated and granted by the lower Court. That the interpretation accorded the judgment under the guise of enforcement is extraneous and unavailable.

That there is nothing to enforce in Exhibit C, a judgment of another Judge, because all the eight (8) declarations and orders made therein on page 55 – 56 of record are not enforceable in law.

That because the matter was uncontested the Court in BHC/78/2018 granted the reliefs as prayed. He reproduced the eight (8) reliefs granted by NWOGU, J., and submitted that the judgment of Nwogu related to and bordered on 2018 congresses in Rivers State and nothing more. That there is nothing in the judgment suggesting that nomination fees paid for 2018 congresses even by the claimants would be the determining factors for

eligibility for future congresses of 1st Appellant in River State. He referred to the appeal that went to Supreme Court from Hon. Justice Nwogu’s judgment. According to him, the Supreme Court did not determine the merit of the matter due to objection taken against the appeal pursuant to Section 285 (12) of the 1999 Constitution to the effect that the appeal ought to have been decided within 60 days. That the rights accorded by the lower Court to the Respondents have no support in the appeal to Supreme Court in APC v. Umar supra. That in any event the Respondents here were not parties to the suit and appeals to Supreme Court.

He therefore submitted that the lower Court was therefore wrong in it decision on page 399 of the record granting all the six relief claimed on the Originating Summons in favour of Respondents. That reliance placed on the case of Labour Party v. INEC by the lower Court is of no moment in the grant of relief 1 to the Respondents by the lower Court. That the lower Court cannot by the judgment bar other eligible parties member from contesting APC congresses. He relied on the case of SCOA NIG. PLC V. TAAN & ORS (2018) LPELR 44545 CA and

AMAECHI V. INEC & ORS 2008 LPELR – 446 (SC) 104 A – F per MUSDAPHER JSC later CJN. He urged the Court to resolve issue 2 in Appellant’s favour.

Overall, he urged the Court to allow the appeal and set aside the judgment of lower Court. He also prayed this Court to hold that Learned trial Judge lacked jurisdiction to entertain suit PHC/4634/2019 Dele Moses & Ors v. APC & Anor and to dismiss the suit.

In response to the submissions under issue (a), the learned Counsel to the Respondents H. A. BELLO, ESQ submitted that the purpose of the issuance and service of Court processes on a party is to bring the said processes to his notice and afford him opportunity of being heard. He relied on B. B. APUGO & SONS LTD VS O.H.M.B. (2016) 13 NWLR (PT. 1529) 206 AT 248. According to him, the Rivers State High Court (Civil Procedure) Rules made specific provisions and requirements for issuance of Originating Summons for Service in Nigeria outside Rivers State relying on Order 3 Rule 14 of the Rivers State High Court (Civil Procedure) Rules 2010. He also made reference to Sections 96 and 97 of the Sheriffs and Civil Process Act, 2004.

To learned Counsel to the Respondents, the “lucid provisions of the laws of Rivers State, the leave is not required for service of Originating Processes outside Rivers State in Nigeria.”

According to H. A. BELLO, ESQ., the only requirement for issuance and service of Originating Process out of Rivers State and at another State in Nigeria is that, Originating Process shall be endorsed by Registrar of the Court that the Originating Process is to be served out of Rivers State of Nigeria and at the other State. He further submitted that:-
“The only time leave of Court is required is where service is to be effected outside Nigeria. See Order 8 Rule 1 of the Rivers State High Court (Civil Procedure) Rules 2010 and C.B.N. vs. Interstella Comm. Ltd. (2018) 7 NWLR (Part 1618) 294 at 325 paragraphs A to B per Ogunbiyi, J.S.C.
5.7 It is obvious that there is no requirement for leave prescribed in any law of Rivers State for the issuance and service of originating process in Nigeria outside Rivers State. The only condition precedent and mandatory statutory requirement for service of Originating process in Nigeria outside Rivers State is “AN ENDORSEMENT BY THE

REGISTRAR OF COURT.” In the instant appeal, Respondents’ Originating Summons was duly endorsed in compliance with the Rules of this Court and the Sheriffs and Civil Process Act. See page 3 of Records where the Originating Summons is duly endorsed thus:
“This Summons is to be served outside the jurisdiction of the High Court of Rivers State and in Federal Capital Territory, Abuja.”
We submit that the issuance and service of the Originating Summons in this matter on the Appellants is valid. We urge the Court to so hold.”

On whether the lower Court lacked jurisdiction to determine the suit and that it relates to the internal affairs or domestic issues of a Political Party, he submitted that Article 21B(i), 21vi(d) and (e) of Appellant’s Constitution is not applicable where aggrieved member of the party institutes action against the party for non-compliance with the provisions of Electoral Act and APC Guidelines. He relied on the case of PDP V INEC (2014) 17 NWLR (PT. 1437) 525 AT 558 C – D per OKORO, JSC. He relied on Section 87(9) of Electoral Act and 36(1) of the Constitution of the Federal Republic of Nigeria. That by virtue of Articles

9.3(i) of APC Constitution 2014, only full members and financially up-to-date members could vote or be voted for into any elective positions and that in this case the Respondents are Members and were wrongfully excluded from participating in Appellant’s Ward Congresses after payment of necessary requisite nomination fee in breach of Article 9.3(i) of APC Constitution. That the cases of ONUOHA V OKAFOR (SUPRA) and UFOMBA V INEC are not applicable to the facts of this case in that the case of PDP V ORANEZI (2018) 7 NWLR (PART 1618) 245 AT 260 has rendered cases like ONUOHA V OKAFOR obsolete.

He submitted that Section 87(9) of Electoral Act 2010 as amended and Section 285(14) of Constitution of Federal Republic of Nigeria 1999 as amended is applicable to this case and that the Respondents are aspirant members of Appellant who are disenchanted with the proposed conduct of Congress of Appellant in Rivers State. He relied on the case of WUSHISHI V IMAM (2017) EJSC (VOL. 66) 49 AT 52 D – F. He relied on Section 156 of the Electoral Act to contend that the Respondents are “Aspirants”. He also relied on LADO V CPC (2012) 17 NWLR (PART 1275) 18 AT 59 – 60. That by

virtue of depositions in paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 of Supporting Affidavit all the Respondents purchased nomination forms and were qualified to approach the lower Court as they did.

That the issues and facts in BHC.78/2018; IBRAHIM V APC are similar. That appeal against the judgment was struck out by Court of Appeal in CA/PH/461/2018: APC VS UMAH & ORS on 12/12/2018. That the Supreme Court in APC V UMAR (2019) 8 NWLR (PT. 1675) 564 AT 575 held that the issues involved were pre-election matter. He also relied on CA/PH/122M/2020: OKIRIGWE JASON OBI & AN V DELE MOSES & 11 ORS where this Court followed decision of Supreme Court to hold that this matter is a pre-election matter.

On whether what the lower Court did amounted to interpretation of judgment, the learned Counsel to Respondent said it was not but an order enforcing a judgment of that Court. On distinction between interpretation and enforcement he relied on the case of IFARAMOYE V STATE (2017) 8 NWLR (PT. 1568) 457 AT 487H per AUGIE, JSC.

On “enforcement” he relied on the case of AHMED V FRN (2009) 13 NWLR (PT. 1159) 536 and

NIGERIAN BREWERIES PLC VS DUMUJE (2016) 8 NWLR (PART 1575) 632. He also relied on the Section 287 of the Constitution. That a Court is bound to enforce its judgment. He relied on the case of YAR’ADUA V. YANDOMA (2015) 4 NWLR (PT. 1448) 123 AT 178B and UMAR V APC (2018) 18 NWLR (PART 1650) 139 AT 156E. That the facts of INCORPORATED TRUSTEES OF NIGERIA GOVERNORS FORUM & ANOR V RIOK NIGERIA LTD & ANOR (2018) SUPRA is distinguishable from the facts of this case.

On what constitute cause of action, he relied on the case of IYEKE V PETROLEUM INSTITUTE & ORS (2019) 2 NWLR (PART 1656) 217 AT AKILU VS FAWEHINMI (NO. 2) (1989) 2 NWLR (PART 102) 122 AT 169. He submitted that the Respondents suit disclosed reasonable cause of action.

On principle of res judicata, he stated that the plea means a thins has been adjudicated upon between same parties in competent Court. He relied on A.G. NASARAWA STATE V A.G. PLATEAU STATE (2012) LPELR – 9730 SC. And on conditions for its enforcement he relied on YANATY PETROCHEMICAL LTD V EFCC (2018) 5 NWLR (PART 1611) 97 AT 136.

He submitted that the parties in suit PHC/3098/2019: IBRAHIM UMAH & ORS V APC are not the same as parties in

this case and that the claims are not the same. That the claim or issue here is for enforcement of the decision by the Court in BHC.78/2018 in accordance with Section 287(1) of Constitution of FRN 1999 as amended.
He urged the Court to discountenance Appellant’s submissions on issue (a).

On issue (b) as to whether lower Court was right in granting all reliefs sought by Respondents, H. A. BELLO, ESQ submitted that judgment in BHC/78/2018 sought to be enforced is a judgment in rem that binds all registered members of Appellant. That the Appellant has not conducted any other Congress since 2018 when its Congress were by order of the Court in BHC/78/2018 nullified.

The learned Counsel to the Respondents is of the view that since Respondents are registered and financially up to date members of Respondent’s (sic) and having paid requisite nomination fees in 2018 and bound by the judgment in BHC/78/2018 sought to be enforced are entitled to participate in any rescheduled Congress of the Appellant in Rivers State. He submitted that the case of LABOUR PARTY V INEC supra is applicable. He concluded by submitting that the learned trial Judge was right in

assuming jurisdiction in Suit No. PHC/4634/2019 and granting all the reliefs sought by Respondents.

In reply to the submissions of the Respondents in the Appellant’s Reply Brief, the learned Counsel to the Appellants stated that the submissions of Respondents at paragraphs 5.45 – 5.54 to the effect that this suit is not caught up by the doctrine of res judicata on account that the parties are not the same is misconceived. That issues of res judicata is not only about parties only but it includes their privies. That by the Respondents own showing they are privies to suit BHC/78/2018 and are thus caught by doctrine of res judicata.

According to him, the contention of the Respondents that Suit PH/3098/2019 which is the same as the one on hand leading to this appeal was filed without jurisdiction was never appealed by the Respondents. That they are bound by the said judgment copied on pages 249 – 275 of the record.

On whether the judgment was per incuriam as argued by Respondents’ learned Counsel, the Appellants’ learned Counsel is of the view that the decision in Suit PH/3098/2019 still binds the Respondents.

On whether the judgment in

BHC/78/2018 delivered by High Court of Rivers State was or is a judgment in rem binding on all APC Members. Learned Counsel to the Appellant sees the submission as misconceived. That there is no such intendment in the said judgment.

That the Judge in BHC/78/2018 NEVER MADE ANY Order for a fresh election hence the cases of AMAECHI V INEC & ORS supra and LABOUR PARTY V INEC supra are not applicable to this matter.

RESOLUTION OF ISSUES (A) AND (ISSUES 1 AND 2)
Now issue (a) borders on what the learned Counsel to the Appellant described as wrong assumption of jurisdiction in Suit PHC/4634/2019 culminating into this appeal in which several grounds alleging lack of jurisdiction were agitated upon by the Appellant. The Appellant had contended that leave of the lower Court was required to issue and serve the Originating Summons which initiated this action before it could be served on the Defendants now Appellants whose Address(es) for service is stated as “NATIONAL SECRETARIAT, NO 40 BLANTYRE STREET, WUSE II – ABUJA” outside the jurisdiction of High Court of Rivers State, Nigeria.

There is no doubt that service of Originating Process

is a condition precedent to enable a Court exercise jurisdiction over a Defendant and failure to serve such process as required by law will be fatal to the Court’s jurisdiction. Where as in this case, the Defendants addresses for service as endorsed on the Originating Summons were/are outside the jurisdiction, the Claimants must first obtain the leave of the lower Court pursuant to Sections 96 – 99 of the Sheriffs and Civil Process Act to issue and serve the said Originating Summons in Abuja outside the jurisdiction of the lower Court.
Sections 96 – 99 of the Sheriffs and Civil Process Act Cap. S. 6 LFN 2004 provide:
“96. (1) A writ of summons issued out of or requiring the defendant to appear at any Court of a State or the Capital Territory may be served on the defendant in any other State or the Capital Territory.
(2) Such service may, subject to any rules of Court which may be made under this Act, be effected in the same manner as if the writ was served on the defendant in the State or the Capital Territory in which the writ was issued.
97. Every writ of summons for service under this part out of the State or the Capital

Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the following effect (that is to say) –
“This summons (or as the case may be) is to be served out of the State (or as the case may be) …” and in the State (or as the case may be):
98. A writ of summons for service out of the State or the Capital Territory in which it was issued may be issued as a concurrent writ with one for service within such State or the Capital Territory and shall in that case be marked as concurrent.
99. The period specified in a writ of summons for service under this Part as the period within which a defendant is required to answer before the Court to the writ of summons shall not less than thirty days after service of the writ bas been effected, or if a longer period is prescribed by the rules of the Court within which the writ of summons is issued not less than that longer period…”
The above Sections of the aforesaid Act have received judicial interpretation by Supreme Court of Nigeria and this Court in numerous cases viz.-

HON. (MRS) DOROTHY MATO VS HON I. H. HEMBER & ORS (2018) 15 NWLR (PART 1612) 258 AT 286 – 287 per my NOBLE LORD ONNOGHEN, CJN who held firmly thus:-
“With regards to Section 96 and 97 of the Sheriffs and Civil Process Act (Supra), the Court below mixed up the issues of filing of process, issuance and service of process. I agree, without reservation that service of writ of summons on the defendant is very fundamental to assumption of jurisdiction by a Court and where leave is required before service, it must be sought and obtained before such service can be effective. Leave is nothing other than the permission from the Court to serve outside jurisdiction. Once granted, service can be carried out.
Any service outside jurisdiction that is done without leave renders the service a nullity. See Skenconsult Nig. Ltd v. Ukey (1981) 1 SC 6, Adegoke Motors Ltd v. Adesanya (1989) 3 NWL2 (Pt. 109) 250 and Nwabueze v. Obi Okoye (1988) 4 NWLR (Pt. 91) 664.
The question that may be asked is whether the filing of process in Court and service of the said process are the same. Without much ado, they are not the same.

Thus, a party who seeks to place his matter before a Court of law must first approach the registry of the Court and file same in accordance with the rules of Court. After filing the matter, the next step is to serve the process on the defendant, except it is a matter which the law permits to be done ex-parte.
Where the law, as in this case, requires that leave be obtained before service can be effected, such leave must be sought and obtained. The Court below seems to have taken the issue of leave to serve outside jurisdiction to mean leave to file the process in Court. This is where the lower Court erred. If one takes a look at Sections 96 and 97 of the Sheriffs Civil Process Act (supra), it will reveal that they come under a sub title-
“Service of Process.” It does not come under filing of Process.
These are two separate things. One relates to service of process while the other relates to filing of same.
2. PDP VS INEC & ORS (2018) 12 NWLR (PART 1634) 533 AT 549 E – H TO 550 A – B per RHODES-VIVOUR, JSC who said:-
“It is so obvious after reading, Section 97 of the Sheriffs and Civil Process Act that it is couched in mandatory

terms. It is abundantly clear that any service of a writ without the proper endorsement as stipulated by Section 97 (supra), is not a mere irregularity but is a fundamental defect that renders the writ incompetent.
There can be no doubt whatsoever that by virtue of Section 97 of the Sheriffs and Civil Process Act, every writ of summons (or originating process) for service out of the State in which it was issued must, in addition to any endorsement of notice required have endorsed on it, a notice indicating, that the summons is to be served out of the State and in which State it is to be settled. Once again failure to endorse the required notice on an originating process for service outside a State where it was issued is not a mere irregularity but a fundamental defect that renders the originating process incompetent. A Court would be deprived of jurisdiction to hear the case if satisfied that there is non-compliance with Section 97 of the Sheriffs and Civil Process Act. See Odu’a Investment Co. Ltd. v. Talabi (1997) 10 NWLR (Pt. 523) P. 1; Nwabueze & Anor v. Justice Obi-Okoye (1988) 4 NWLR (Pt. 91) P. 664; Skenconsult (Nig) Ltd. v. Ukey (1981) 12 NSCC P. 1.

The Courts have no discretion under Section 97 of the Sheriffs and Civil Process Act. Once the claimant fails to comply with the mandatory provision in Section 97 (supra), the Court would no longer have jurisdiction to hear the suit. It is fundamental that the claimant obeys and complies fully with the provision. No valid appearance can be entered by the defendant to an originating process that does not have the mandatory endorsement, except to enter conditional appearance.
I have examined the originating summons and the subsequent amendment to it and I am satisfied that there is no endorsement on it for service in Abuja outside Delta State. The originating summons is invalid, worthless and void.
There would be no need for me to consider whether leave was obtained, since non-compliance with Section 97 of the Sheriffs and Civil Process Act brings the hearing of this appeal to an end. The Court of Appeal was wrong, while the High Court was right. Once there was non-compliance with the provisions of Section 97 of the Sheriffs and Civil Process Act, the trial Court would have no jurisdiction to hear the case.”

BEN OBI NWABUEZE V JUSTICE OBI OKOYE (1988) 4 NWLR (PART 91) 664 AT 681H – 682 A – D per AGBAJEI, JSC.
At page 685, the learned Justice of Supreme Court had this to say:-
“I have held that the provisions of Order 2 Rule 4 of the Rules of the Supreme Court of England (1960) which provides that no writ of summons for service outside of the jurisdiction or of which notice is to be given out of jurisdiction shall be issued without the leave of the Court or a Judge. By the indorsement on the writ of summons in the case in hand, the addresses of the defendants for service are outside of Anambra State, to wit, their addresses for service are in the case of the 1st defendant in Lagos State and in the case of the 2nd defendant in Lagos State and or Imo State. In other words on the showing of the plaintiff himself the defendants are outside the area of territorial jurisdiction of the High Court of Anambra State. So because of the provisions of Order 2 Rule 4 of R.S.C. (1960) England the plaintiff had to obtain the leave of the Anambra High Court before he could issue or cause the writ of summons to be issued. It is common ground in this case that no such leave was

obtained by the plaintiff before the writ was issued or before the plaintiff caused the writ to be issued.
As I have said, the issue of a writ of summons and the service of the same writ on a defendant are conditions precedent for the exercise of a Court’s jurisdiction over the defendants. And from what I have been saying so far a condition precedent for the issue of the writ of summons against the defendants in this case who are resident outside the area of territorial jurisdiction of the High Court of Anambra State and who, again, neither of them carries on business within that area of jurisdiction, is that leave of the State High Court had to be first obtained before the writ was issued.
Leave to issue a writ which is to be served out of the jurisdiction is not granted as a matter of course under the English Rules. For the discretion to grant the leave sought is exercised judicially and with great care. See Williams v Cartionright (1885) 1 Q.B. 142 C.A. Bowlong v. Cox (1926) A.C. 751, 754. And as Chief F.R.A. Williams S.A.N. points out to us in his arguments in this appeal the question which is the forum convenience for the trial is one of the

matters to be considered by Court in the exercise of this discretion. Other matters are (1) the question of comparative cost and convenience (see Logan v. Bank of England (1906) 1 K. B. 141 C.A. and (2) the fact, if it exists, that proceedings in respect of the same subject-matter are already pending elsewhere. See The Hagen (1908) P. 189 at 202. So the application for leave to issue a writ which is to be served out of jurisdiction is not a mere formality. Since leave was not first obtained before it was issued I must hold and I do hold that the writ of summons had been issued without due process of law and accordingly has to be set aside. (Underlined mine)
4. D.E.N.R. LTD VS TRANS INTL BANK LTD (2008) 18 NWLR (PART 119) 388 AT 417 G – H TO 420 A – H per MUNTAKA-COOMMASSIE, JSC who said:-
“As I earlier pointed out, the writ of summons was addressed to be served outside the jurisdiction of the Oyo State High Court i.e. to be served in Lagos, and the leave of that Court was not sought and obtained before it was issued. In the case of Intra Motors Nig. Plc v. Akinloye (2001) 6 NWLR (Pt.708) 61 at 72, the Court of Appeal in consideration of the same

rules of the Oyo State High Court held as follows:
“After careful consideration of the above submission in the two briefs, the 1st issue, I will begin by reiterating the settled law that where the address of the defendants is outside the jurisdiction of the trial High Court and the said defendant is thus residing outside the Court’s jurisdiction, the conditions precedent for the exercise of Court’s jurisdiction over him is that a valid writ of summons must be issued and served on him. Also in that circumstance and under the appropriate rules of Court the issuance of such a writ and its service on the said defendant can only be valid where the leave of the High Court was sought and obtained for the issuance of the said writ of summons and for its service on the defendant. See Nwabueze v. Okoye (1988) 4 NWLR (Pt. 91) 664; 7-Up Bottling Co. Ltd. v. Trio Commodities Co. Ltd. (1996) 6 NWLR (Pt 455) 441; Aermacchi S.P.A. v. A.I.C Ltd. (1986) 2 NWLR (Pt.23) 443. In the present case, the relevant rule which makes it mandatory to obtain leave to issue and serve writ of summons on the defendant who resides outside the jurisdiction of the Court is

Order 5 Rules 6 and 14 of the High Court (Civil Procedure) Rules of Oyo State, 1988.”
My Lords, even though this decision is merely persuasive in nature, agree with the reasoning therein stated. This Court in the case of NEPA v. Onah (1997) 1 SCNJ 220; (1997) 1 NWLR (Pt. 484) 680 after considering earlier decision in Nwabueze v. Okoye (Supra), held per Mohammed, JSC at p. 690, paras. C-D as follows:
“Section 97 of the Sheriffs and Civil Process Act is the section which deals with the issuance of writ and coupled with the provisions of Order 2 Rule 16 of the High Court (Civil Procedure) Rules of Bendel State, it is abundantly clear that signing or sealing a writ for service outside jurisdiction without leave of the Court or a judge is a fundamental breach of statutory requirement”.
In conclusion at page 231, His Lordship held as follows:
“…Both the writ of summons and the service on the appellant are declared invalid, null and void.”
Applying these principles of law to the appeal at hand, I hold that failure of the respondent to seek and obtain the leave of the Court or the judge to issue and serve the writ of summons outside the

jurisdiction of the Court amounts to fundamental defect and not a mere irregularity which can be cured hence I have no hesitation in declaring both the issuance and the service of the said writ of summons outside the jurisdiction as invalid.
The insertion of 30 days grace in the writ of summons does not change the position. For the avoidance of any possible doubt, the writ of summons and service of same outside the jurisdiction of the Oyo State High Court without the leave of the Oyo State Court are bad and invalid.
I am satisfactorily fortified in the eloquent decision of my learned brother, Ogwuegbu, JSC in N.E.P.A v. Onah (supra) at p.694 thus:
“In this case, the writ of summons which initiated the proceedings leading to this appeal was irregular in failing to comply with Section 97 of the Sheriffs and Civil Process Act, Cap. 407, Laws of the Federation of Nigeria 1990 and Order 2 Rule 16 of the High Court (Civil Procedure) Rules of the former Bendel State of Nigeria applicable in Edo State. The issuance of the writ of summons for service on the 8th defendant who is in Lagos and outside the jurisdiction of the Court in Benin without the

leave of the Court is a fundamental irregularity.
The writ of summons having been signed and sealed without leave, the plaintiff has not issued an proceedings in the manner prescribed by the rule. The writ is a nullity and the Court cannot cure the defect. In effect, there are no proceedings before the trial Court. See Nwabueze & Ors. v. Obi Okoye (1988) 4 NWLR (Pt. 91) 664 and Pritchad v. Deacon & Ors (1963) 1 Ch. 502.
Non-compliance with Order 2 Rule 16 of the High Court (Civil Procedure) Rules of Bendel State renders the writ of summons a nullity. Non-compliance with Section 97 of the Sheriffs and Civil Process Act renders the service on the 8th defendant null and void also.”
Uwais, CJN, supports the position in his statement at P. 693 of that case, thus:
“It is settled by the decision of this Court in Nwabueze & Anor v. Obi Okoye (1988) 4 NWLR (Pt.91) 664 that where the rules of High Court provide that before a writ of summons to be served out of jurisdiction is issued; leave of the High Court must be obtained; and if no such leave is obtained prior to the taking out of the writ, then the writ is vitiated and would

be declared null and void. The decision is binding on all Courts by the doctrine of stare decisis. The lower Courts were therefore in error when they failed to declare null and void the writ taken out by the respondent as plaintiff, without leave.” (Underlined mine)
The only Court outside the ambit of Sections 96 – 99 of Sheriffs and Civil Process Act is the Federal High Court BUT NOT a State High Court.
See: O. O. AKEREDOLU V. DR. OLUSEGUN MICHAEL ABRAHAM & ORS (2018) 10 NWLR (PART 1628) 510 at 537 per OKORO JSC, who said:
“In the instant case, assuming that the appellant resident in Owo in Ondo State, or any other part of territorial boundary of Nigeria, the originating summons issued by the Federal High Court in Abuja can be personally served on him at that address. Where, as it turned out in this case, personal service was impossible, the learned trial Judge was competent and had the jurisdiction to make an order for substituted service on the appellant. This is so because of the nationwide territorial jurisdiction of the Federal High Court. Both the trial Court and the Court below were right to distinguish the case of

Kida v. Ogunmola (supra) from the instant case because the former relates to the jurisdiction of the State High Court while the latter relates to the jurisdiction of the Federal High Court with their respective and different territories of operation.”
It is therefore erroneous for the trial Court to hold that no leave was required to serve Originating Process issued out of the High Court of Rivers State for service outside jurisdiction in Abuja. Leave is statutorily required.

Another major issue of jurisdiction raised is whether the lower Court has jurisdiction to interpret judgments of High Court of Rivers State in Suit No. BHC/78/2018, Court of Appeal judgment in CA/PH/461/2018 and judgment of Supreme Court in SC/1333/2018 vide Originating Summons.
Order 3 Rule 5 of the High Court of RIVERS STATE (CIVIL PROCEDURE) RULES 2010 provides:-
“Any person claiming to be interested under a deed, will, enactment or other written instrument may apply by Originating Summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of person interested.”

The whole essence of Originating Summons has been stated or explained in numerous cases all warning that where issues in controversy or dispute are contentious, originating summons cannot be the vehicle of initiation or commencement of such a suit or action. It is also beyond argument that unless a litigant is desirous of a determination of right or action bordering on interpretation or construction of a deed, statute, will or instrument, originating summons cannot be the mode of commencement of the action. See the case of NJIDEKA EZEIGWE V CHIEF B.C. NWAWULU & ORS (2010) 4 NWLR (PART 1183) 159 AT 215 – 216 per ADEKEYE, JSC.
In the case of BARR ORKER JEV. & ANOR V SEKAV DZUA IYORTYOM & ORS (2014) 8 SCM 131 AT 156 E TO 158A where my Lord OKORO, JSC had this to say:-
“There is no doubt that originating summons is one of the ways of commencing action in our Courts. It is provided for in the various High Court Rules. For the Federal High Court (Civil Procedure) Rules 2009, Order 3 Rules 6 and 7 thereof provide:-
“6. Any person claiming to be interested under a deed, will, enactment or other written instrument may apply by Originating Summons for the determination of

any question of construction arising under the instrument and for a declaration of the rights of the persons interested.
“7. Any person claiming any legal or equitable right in a case where the determination of the question whether such a person is entitled to the right depends upon a question of construction of an enactment, may apply by Originating Summons for the determination of such question of construction and for a declaration as to the right claimed”.
The above provision clearly states the type of actions that may be commenced by way of Originating Summons. Where the issue is that of construction of documents or interpretation of statutory provisions, it is safe and prudent to approach the Court by Originating Summons.” (Underline mine)

The law is firmly settled that judgment of a Court of law does not come within the purview of interpretation or construction vide Originating Summons because it is not an instrument. The lower Court has no jurisdiction to embark on interpretation or examination of what the judgments listed out in the Originating Summons decide or their intendments. See the case of

RACE AUTO SUPPLY COMPANY LIMITED & ORS VS ALHAJA FAOSAT AKIB (2006) 13 NWLR (PART 997) 333 AT 351 E – 352 A – E per MOHAMMED, JSC who said:-
“In this appeal, it is necessary to examine the status of the Lagos High Court consent judgment of Obadina, J. (as he then was) of 4-5-98 which was placed before Shitta-Bey, J., of the same Lagos High Court for interpretation by the appellants under Order 46 Rule 1 of the Lagos State High Court (Civil Procedure) Rules, 1994 which provides:
“Any person claiming to be interested under a deed will or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for declaration of the rights of the parties interested.”
The question is whether the consent judgment of 4-5-98 between the parties which was before the trial Court for interpretation on the application of the appellants comes within the definition of “written instrument” capable of being accommodated under the rule. The word ‘instrument’ is defined in Strouds Judicial Dictionary, as ‘anything reduced to writing, a document of formal or solemn character’. However, whether anything reduced to

writing is an instrument largely depends on the context in which it is used. For example the same Strouds Judicial Dictionary, Volume 3 at page 1386 stated plainly that ‘orders of Court were not instrument within Apportionment Act, 1834″. One may find support in this observation by Stroud to say that a judgment of a Court of law can hardly be accommodated under the words “other written instrument” under Rule 1 of Order 46 of the Lagos High Court (Civil Procedure) Rules, 1994, under which the appellants filed their application for the interpretation of the consent judgment of 4-5-98. In other words, a judgment of a Court of law cannot be subjected to interpretation by a Court of co-ordinate jurisdiction like a deed, a will or an instrument containing right and obligation of parties under Order 46 Rule 1 of the Lagos High Court (Civil Procedure) Rules. In any case, even if the consent judgment in the present case were to be regarded as instrument under Rule 1 of Order 46, the provision would not give a High Court jurisdiction to determine any question of construction or interpretation arising from the judgment of a Court of co-ordinate jurisdiction like the

Lagos High Court resided by Obadina J, (as he then was) and the same Court as presided by Shitta-Bey. J., or that of a higher Court like the Court of Appeal or this Court. If a judgment of a Court of law were to be regarded as an instrument like a deed or will, then even the judgment of the Court of Appeal or this Court could be subjected to interpretation by the High Court under Order 46 Rule 1 which is rather absurd. In the present case therefore, the Court below was quite right in its decision that the trial Lagos High Court presided over by Shitta-Bey, J., lacked competence to subject the consent judgment of the same Court delivered by Obadina, 1, (as he then was) to interpretation of the contents or terms thereof.” (Underline mine)

To my mind, the whole gamut of the questions postulated for answers and the reliefs sought therein were in effect an invitation to the lower Court to sit over the judgments of Court of coordinate jurisdiction and of higher Courts as appellate Court on the said judgments which he could not rightly do under the Constitution of the Federal Republic of Nigeria and the law. If a judgment does not meet the claim of the party or it

is not as favourable to his interest as he may have fathomed out, the option open to him is to appeal the judgment and not to approach another Court of coordinate jurisdiction to appraise, reappraise, modify or give different impression of what the judgment given in his favour or against him conveys with a view to obtaining more favourable decision from the other Courts of the same status. The lower Court will lack the jurisdiction to intervene as it has done in this case. See:-
1. HON. A.G. OF LAGOS STATE VS THE HON. A.G. OF THE FEDERATION & ORS (2014) 4 SCM 1 AT 41F TO 42A, 50G-G and 731 TO 74 A – B;
2. SPDC (NIG) LTD VS CHIEF TIGBARA EDAMKUE & ORS (2009) 14 NWLR (PART 1160) 1 AT 28F-H TO 29A per OGBUAGU, JSC who said:
“However, I am aware and concede on this, it is also settled that no Judge can or is entitled to reverse, vary or alter the Order or decision of another Judge of co-ordinate jurisdiction except on issue of jurisdiction. See the cases of Akporue & Anor v. Okei (1973) 12 SC. 137; (1973) 3 ECSLR 1010 @ 1014; Orewere & Ors. v. Abiegbe & Ors. (1973) 3 ECSLR 1164 @-1167 – that the proper action is to go on appeal:

National Insurance Corporation of Nigeria v. Power Industrial Engineering Co. Ltd. (1990) 1 NWLR (Pt. 129).”
In the case of MR AKINFELA FRANK COLE VS MR. ADIM JIBUNOH & ORS (2016) 4 NWLR (PART 1503) 499 AT 521 C – H, the apex Court in the land reaffirmed the position stoutly when GALADIMA, JSC said:-
“A Court of co-ordinate jurisdiction has no constitutional power to sit as an appellate Court in another case and review and/or adjudicate on a decision or order made by another Court of the same hierarchy. See Chief Gani Fawehinmi v A.G., Lagos State (No. 1) (1989) 3 NWLR (Pt. 112) 707 at 74, paras. C – D where the Court held:
“The presumption has always been that the decisions of a superior Court are within jurisdiction and are correct until the contrary is proved. It seems to me that even if the decision of the superior Court is a nullity, the only proper way of challenging such decision must be by an application before the very Court which tried the case or by an application to the appropriate appellate Court even if the judgment of Longe, J., were a nullity, the proper way to set it aside is by an appeal not be review before a Court of

co-ordinate jurisdiction… it seems to me that, in view of the provision of the Constitution, which carefully shares jurisdiction to the various Courts. Only the Court vested with the particular jurisdiction can interfere with the decision of another Court. The ruling of the trial Court that it has jurisdiction to entertain the present suit is due to the averments of fraud contained. In the statement of claim, whereas the substance or issue in the suit is a challenge and a disguise to set aside the decision and auction carried out by virtue of an order made by a Court of coordinate jurisdiction in the earlier suit No. ID/1082/90. This is not proper.”

I am not oblivious of the reason given by the learned trial Judge for his assumption of jurisdiction in this case;
“I have considered the submissions of both Counsel on this issue. While the Defendants/Applicants’ Counsel is saying that the Claimants/Respondents came to Court in this case to seek interpretation of the judgments in the EXHs C, D and E, the Counsel for the Claimants/Respondents is saying that the Claimants came to enforce the said judgment given by the three levels of the Courts.

The word interpret means
(1) to give meaning of;
(2) explain or make clear
(3) to derive a particular understanding of
(4) give a certain explanation to
(5) construe and
(6) to translate orally
On the converse, enforce means to give effect to the judgment of a Court as was held in the cases of Ahmed v. FRN (2009) 13 NWLR (Pt. 1159) 536 and Nigerian Breweries v Dumuje (supra).
It is clear that this Court has no jurisdiction to interpret judgments of Court and it is also clear that this Honourable Court has the jurisdiction to enforce judgments of Courts.
This suit of the Claimants/Respondents is not on the interpretation of the judgments in the EXHS C, D and E but to enforce them.
Accordingly, this issue is to be resolved against the Defendants/Applications and in favour of the Claimants/Respondents and I so hold.”

I have at the outset laid out the reliefs sought on the Originating Summons and questions posed for determination. There is nothing in them seeking for enforcement of judgments listed in the Originating Summons. And even if any of them had sought for such an enforcement vide

another suit as in this case the lower Court is out-rightly devoid of jurisdiction to adjudicate on the matter.

The right of the parties in the judgments which are the subject matter of this suit have clearly defined and decided on the rights of parties to the said judgments. A party cannot enforce a judgment of which he is the beneficiary or a judgment creditor vide institution of another action. It is an abuse of process.
The Respondents cannot take umbrage under Section 287(2) of the Constitution to embark on this suit which is no doubt an abuse of Court process. Judgment of a Court takes effect immediately upon pronouncement. Its execution or enforcement is provided for under the Sheriffs and Civil Process Act. See:-
1. CHIEF UJILE D. NGERE & ANOR VS CHIEF J. W. OKURUKET & ORS (2014) 11 NWLR (PART 1417) AT 173 C- H per RHODES-VIVOUR, JSC who said:-
“The Court of Appeal granted a perpetual injunction restraining the applicants from laying any claim to the stool of Okan-Ama of Ngo yet while that order still stands the 1st applicant in his affidavit introduced himself as of the Palace of Okan-Ama Ngo. This amounts to

disobedience of the orders of the Court of Appeal. The question to be answered is whether the 1st applicant (who is now a contemnor) should be heard and can be entitled to the discretion of this Court?
Section 287(3) of the Constitution reads:
“287(3) The decisions of the Federal High Court, the National Industrial Court, a High Court and of all other Courts established by this Constitution shall be enforced in any part of the federation by all authorities and persons, and by other Courts of law with subordinate jurisdiction to that of the Federal High Court, the National Industrial Court, a High Court and those other Courts, respectively.”
The judgment of a Court of competent jurisdiction subsists until upset on appeal. While the judgment subsists every person affected by it or against whom an order is made must obey it even if it appears wrong.
2. GOVERNMENT OF GONGOLA STATE VS ALHAJI UMARU ABBA TUKUR (1989) 9 SC 105 AT 122 – 123 per NNAEMEKA-AGU, JSC who said:-
“In the case of Akunnia v. Attorney-General of Anambra State (1977) 5 S.C. 161, at p. 177, this Court came to the same conclusion where it drew a distinction

between an executory and a declaratory judgments. Both must be obeyed but it is only the former that can be executed; such an execution may be stayed. The question is whether the judgment in this case is among those that were capable of execution.
Now what is the meaning of execution? I think execution simply means the process whereby a judgment or order of a Court of law is enforced or given effect to according to law. Our Sheriffs and Civil Process Act (Cap 189) Laws of the Federation, 1958, deals elaborately with process for execution that are recognised at law. Just as judgments can often be executed according to the provisions of that Act or the corresponding Laws of a State; it is only those judgments that are capable of execution that their execution can be stayed.
I therefore wish to begin my consideration of the main issue raised by this appeal by pointing out that although every judgment of a Court must be obeyed and is effective from the date of its delivery or from such a date as the judgment itself appoints the method of enforcement of a particular judgment depends upon the type of judgment.
In the sum
(i) A judgment/order

for payment of money may be enforced by a writ fiery facias, garnishee proceedings, a charging order, a writ of sequestration or an order of committal on a judgment debtor’s summons.
(ii) A judgment for possession of land may be enforced by a writ of possession, a writ of sequestration or a commits/order.
(iii) A judgment for delivery of goods may be enforced by a writ of specific delivery or restitution or their value, a writ of sequestration or writ of committal.
(iv) A judgment ordering or restraining the doing of an act may be enforced by an order of committal or a writ of sequestration against the property of the disobedient person.
For these, see Sections 20, 24, 25, 35, 38, 44, 55, 57, 58, 65, 82 and 83 of the Sheriffs and Civil Process Act (Cap. 189) Laws of the Federation – 1958.”
3. CHIEF M. O. OLATUNJI V OWENA BANK PLC & ANOR (2008) 8 NWLR (PART 1090) 668 AT 678H TO 680A per MUSDAPHER, JSC later CJN.
The suit of the Respondents (PHC/4634/2019) is a gross abuse of the Court process. See HON. JUSTICE TITUS ADENIYI OYEYEMI RTD & ORS VS HON. TIMOTHY OWOEYE & ORS (2017) 12 NWLR (PART 1580) 364 AT 397 C – H per BAGE, JSC who said:-

“The logic of judicial sanctity dictates that the earlier suit and its appeal ought to be rested and decided one way or the other including whether or not the appeal was validly withdrawn. By instituting another action which embodies the issues as in the earlier action on appeal makes the latter manifestly an unpardonable abuse of Court process.
This Court has succinctly enunciated in Ntuks v. NPA (2007) 13 NWLR (Pt.1051) 392 at 419-420, paras. H-C on the meaning of abuse of Court process and held that:
“Abuse of Court process generally means that a party in litigation takes a most irregular, unusual and precipitates action in the judicial process for the sake of action qua litigation, merely to waste valuable litigation time. It is an action which could be avoided by the party without doing any harm to the matter in dispute. The process of the Court is used malafide merely to overreach the adversary to the direct annoyance of the Court. The Court process is initiated with malice or in some premeditated or organized vendetta, aimed at frustrating either the quick disposal of the matter or the abatement of the matter

for no good cause. The Court process could also be said to be abused where there is no iota of law supporting it. In other words, the Court process is premised or founded on frivolity or recklessness.” The further evidence of abuse of Court process by the Respondents can be seen in the judgment of the same High Court of Rivers State in PHC/3098/2019: IBRAHIM UMAH & ORS VS JOLLY EGURU & ORS, judgment delivered by HON. JUSTICE G. O. OLLOR on 18th December, 2019 contained on pages 250 – 275 of the record of appeal where at pages 274 – 275, the learned trial Judge held:-

“Accordingly, and in pursuance of the provisions of Order 3 RR 7 & 12(a) of the Rivers State High Court (Civil Procedure) Rules 2010, I ORDER that the Originating Summons of the Claimants filed in this Suit on the 12/9/2019 be and is hereby struck out for being incompetent and this Court lacks jurisdiction to entertain and determine same. Furthermore, Order 39 Rule 3(3) of the High Court (Civil Procedure) Rules 2010 provides inter alia “An Order of Injunction made upon an application ex-parte shall abate after (7) days”. Consequently, the Interim Orders made by this Court in

this Suit on Thursday 12/9/2019 be and are hereby set aside accordingly.
Cost of N100,000.00 (One Hundred Thousand Naira) only is awarded against the Claimants in favour of the Defendant. I so order.”
The reliefs sought in the said Suit PHC/3098/2019 is similar to the Suit leading to this appeal. They are as follows:-
“1. Whether upon the Construction of Section 287 (1), (2) & (3), Constitution of the Federal Republic of Nigeria, 1999 (as amended), the High Court of Rivers State of Nigeria is not bound to enforce the following judgments delivered by Courts of competent jurisdiction to wit:
(a) Judgment of the High Court of Rivers State in BHC/78/2018: Ibrahim Umah & 22 Ors vs APC delivered on 10/10/2018.
(b) Judgment of the Court of Appeal No. CA/PH/461/2018; APC VS Umah & 22 Ors delivered on 12/12/2018;
(c) Judgment of the Supreme Court in SC.1333/2018: APC VS Umar & 22 Ors delivered on 8/3/2019 now reported in (2019) 8 NWLR (PT. 1675) 564.
2. Whether upon the enforcement of the aforesaid judgments, the Defendant is entitled to direct payment of fresh nomination fees before participation in the Ward

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Congresses of the Defendant in Rivers State schedules for Tuesday, September, 17, 2019 or any other date.
Upon the determination of the above questions in favour of the Claimants, the Claimants’ claim against the Defendant jointly and severally as follows:-
(d) A DECLARATION that sequel to the judgments of the High Court of Rivers State of Nigeria in BHC/78/2018: IBRAHIM UMAH & 22 ORS VS APC delivered on 10/10/2018, Court of Appeal No. CA/PH/461/2018; APC VS Umah & 22 Ors delivered on 12/12/2018; and Supreme Court in SC. 1333/2018: APC VS Umar & 22 Ors delivered on 8/3/2019 now reported in (2019) 8 NWLR (PT. 1675) 564, it is only the Claimants and all members of the Defendant who paid for nomination forms for the May 5, 2018 Ward Congresses of the Defendant in Rivers State that are entitled and qualified to participate in the Ward Congresses of the Defendant in Rivers State on Tuesday, September 17, 2019 or any other date and without making payment of any fresh nomination fees.
2. A DECLARATION that the exclusion of the Claimants from participating in the Ward Congresses of the Defendant in Rivers State schedules for Tuesday

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September 17, 2019 is unconstitutional, null and void.
3. A DECLARATION that the request by the Defendant for the Claimants to make payments for purchase of fresh nomination forms for participating in Ward Congresses scheduled for September 17, 2019 or any other date in Rivers State is null and void.
4. A mandatory Order commanding the Defendant to forthwith unconditionally issue nomination forms to the Claimants and only those other members of the Defendant who paid for the May 5, 2018 Ward Congresses in Rivers State for participation in the September 17, 2019 Ward Congresses of the Defendant in River State, or any other date on the exclusion of all other members of the Defendant who did not pay before May 5, 2018.”
I am of the view that since there was no appeal against the judgment in PHC/3098/2019, it is res judicata and the lower Court has no jurisdiction to deal with the subject matter of this Suit.

The issues raised are resolved in Appellants favour.

Order is hereby made striking out the Suit of the Respondents viz: PHC/4634/2019: DELE MOSES & ORS VS APC & ANOR.

However having found that this Court has lost

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jurisdiction to adjudicate on the Appellant’s appeal since it emanated from a pre-election matter that ought to be determined within 60 days from the date of judgment of lower Court, the Appellants’ appeal is hereby struck out for want of jurisdiction.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the Judgment just delivered by my learned brother, PETER OLABISI IGE, JCA. I am in complete agreement with the reasoning and resolution of the Preliminary Objection and issues donated for resolution in the appeal. The reasoning is so remarkable and clear.

Courts can never say too much on the issue of jurisdiction because of the importance of jurisdiction. See ANYANWU V OGUNEWE & ORS (2014) LPELR-22184(SC).
Lack of jurisdiction undoubtedly divest the Court of competence. See OLORUNTOBA-OJU & ORS V ABDUL-RAHEEM & ORS (2009) LPELR-2596(SC) which held thus:
“It is trite that the competence of a Court to adjudicate upon a matter is both a legal and a constitutional prerequisite. Hence any defect in the competence and jurisdiction of a Court or an action is fatal. The proceedings therein would result in a

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nullity howsoever well conducted and determined, because such defect is not just extrinsic, but intrinsic to the adjudication. Where a Court lacks jurisdiction, it lacks the necessary competence to try the case. See Kalogbor v. General Oil Ltd. (2008) All FWLR Pt. 418 page 303, Forestry Research Institute of Nigeria v. Gold (2007) 5 SCNJ 302 (2007) 11 NWLR Pt. 1044 page 1, Uzoho v. National Council on Privatization (2007) All FWLR Pt. 394 page 370, Oke v. Oke (2006) 17 NWLR Pt. 1008 page 224, S.P.D.C Nig. Ltd. v. Isaiah (2001) NWLR Pt. 723 page 168, Peenok Investments Ltd. v. Hotel Presidential Ltd. (1983) 4 NCLR page 122.” Per ADEKEYE, J.S.C.

There are several aspects of jurisdiction in this appeal. Considering the pre election nature of the subject matter, the appeal has become spent. Pre Election Appeals constitutionally must be determined within 60 days from the date of the judgment appealed against and this was not done here. The Court is divested of jurisdiction and the appeal must be struck out because any proceedings conducted without jurisdiction is a nullity. See UTOO V APC & ORS (2018) LPELR 44352(SC) where the apex Court held as follows:

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“The Supreme Court, like other Courts in the land, is a creation of statute. The jurisdiction of Courts is specified and governed by the provisions of the Constitution or the statute that created them. A Court cannot assume jurisdiction to adjudicate in a cause or matter unless its jurisdiction has been properly invoked. Any proceedings conducted without jurisdiction are a nullity, no matter how well conducted and no matter how sound the decision or orders made therein. It has been held that the issue of jurisdiction is extrinsic to adjudication. See Madukolu Vs Nkemdilim (1962) 1 ALLNLR 587 @ 596; Dapianlong vs Dariye (2007) 4 SC (Pt. 111) 118; A.G. Lagos State Vs Dosunmu (1989) 3 NWLR (Pt. 111) 552 @ 567; Petrojessica Ent. Ltd Vs Leventis Tech. Co. Ltd. (1992) 5 NWLR (Pt. 244) 675.” Per KEKERE-EKUN, J.S.C.

On the merit, the claim and reliefs sought at the trial Court also are out of the purview of the trial Court, the trial Court lacks the vires to sit on appeal over the Judgment of a coordinate Court in the guise of executing the Judgment of the said Court. See ENEH V NDIC & CRS (2018) LPELR-44902(SC) wherein NWEZE, JSC said:

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“It is well-settled that a Court cannot review the judgement of a Court of co-ordinate jurisdiction. In Dingyadi v INEC (2011) 10 NWLR (PT. 1255) 347, this Court held that: Under the doctrine of stare decisis, lower Courts are bound by the theory of precedent. It is in effect a doctrine which enjoins Judges to stand by their decisions and the decisions of their predecessors, however, wrong they are and whatever injustice they inflict. All Courts established under the Constitution derive their powers and authority from the Constitution. The hierarchy of Courts shows the limit and powers of each Court. It is to ensure that hierarchy of the Court is never in issue. See Mohammed v Olawunmi [1993] 4 NWLR (pt. 287) 254; 7 UP Bottling Co. Ltd. v Abiola and Sons (Nig) Ltd [1995] 3 NWLR (pt. 883) 257; Osho v Foreign Finance Corporation [1991] 4 NWLR (pt. 184) 157; Dalhatu v Turaki [2003] 15 NWLR (pt. 843) 310. This question is indeed, rooted in the theory of justice as this Court explained way back in 2004. Thus, in NIMB Ltd v UBN Ltd and Ors (2004) LPELR – 2003 (SC) 20; C – G, Pats -Acholonu, JSC rationalized, in elegant prose, that: The theory of justice to which we adhere rests a priori on

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the premise that there must be certainty and parties to the legal duet should be in a position to know where they stand at a certain time. A system of law where Judges of the same degree i.e. of co-ordinate jurisdiction make contradictory and inconsistent orders in respect of the same subject matter involving the same parties i.e. each relying on his whims, caprices, prejudices and sometimes a vaunting ego, makes nonsense and mockery of the law. The beauty or what I might describe as the romance of law is that just as stare decisis exercises a restraining influence on our Courts, so too do discipline in the Courts in dutifully adhering to normative order by which Courts of co-ordinate jurisdiction do not sit on appeals on each other, attracts respect for the law. My Lords, I entirely endorse the above views.”

Execution of a judgment cannot be by way of a fresh action particularly, originating summons which is a specialized process, the process for execution of Judgment is entirely different. It starts by registering the Judgment. There is still the issue of serving the processes out of Rivers State without leave of Court. It is obvious the claim and

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the appeal are fraught with impeaching features and it must fail.

I too, on the Preliminary Objection strike out the appeal and in obeisance to the clarion call by the apex Court to still resolve issues when the Court finds that it lacks jurisdiction, I strike out the claim of the respondents at the trial Court.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Peter Ige, JCA, just delivered. I agree with the reasoning and conclusion reached, I do not have anything useful to add. I abide by all the orders made therein.

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Appearances:

TUDURU U. EDE, SAN, with him, C. W. JEROME, ESQ., M. S. IBRAHIM, ESQ., SHERIFF ADUKKE, ESQ. and AISHA IBRAHIM, ESQ. For Appellant(s)

A. BELLO, ESQ., with him, F. C. NWAFOR, ESQ. and AMINA MARAFA, ESQ. For Respondent(s)