CHIEF GREAT OVEDJE OGBORU v. RT. HON. VICTOR ONYEKACHI OCHEI & ORS
(2019)LCN/13499(CA)
In The Court of Appeal of Nigeria
On Friday, the 14th day of June, 2019
CA/A/379/2019
JUSTICES
ADAMU JAURO Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
CHIEF GREAT OVEDJE OGBORU Appellant(s)
AND
1. RT. HON. VICTOR ONYEKACHI OCHEI
2. ALL PROGRESSIVE CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
RATIO
THE ESSENCE OF RULES OF PROCEDURE
As held by the Supreme Court in U.T.C (Nig) Ltd. v. Pamotei (1989) 2 NWLR (Pt. 103) 244 at 296 “Rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not to defeat justice. The rules are therefore aids to Courts to read rules in the absolute without recourse to the justice of the cause, to my mind, will be making the Courts slavish to the Rules. This certainly is not the raison d’etre of rules of Court.” See also Salami v. Bunginimi & An. (1998) 9 NWLR (Pt. 565) 235 8 and Combe v. Edwards (1878) L.R.P.D. 103 at 142. The Supreme Court had held in Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387, that “It is well settled law that a breach of a rule of practice can only render a proceeding an irregularity and not a nullity. Such an irregular proceeding can only be set aside if the party affected acted timeously and before taking a fresh step since discovery of the irregularity.” See also Duke v. Akpabuyo LG. (2005) LPELR – 963 (SC). PER AGIM, J.C.A.
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This appeal No. CA/A/379/2019 was commenced on 17-4-2019 when the appellant herein filed a notice of appeal against the judgment of the Federal High Court of Nigeria at Abuja delivered on 4-4-2019 in Suit No. FHC/ABJ/CS/1085/2018 by Nnamdi O. Dimgba J. The notice of appeal contains 4 grounds of appeal.
The appellant, 1st respondent and 3rd respondent filed, exchanged and adopted their respective briefs as follows-Appellant’s brief, 1st respondent’s brief, 3rd respondent’s brief and appellant’s reply brief.
The appellant’s brief raised the following issues for determination-
1. Whether and in view of the extant provision of Section 285 (10) of the Constitution of the Federal Republic of Nigeria 1999 (Forth Alteration No.21) Act, 2017, the learned trial Judge acted with jurisdiction when he proceeded to deliver Judgment in the 1st Respondent’s case. (Ground 2 of the Grounds of Appeal).
2. Whether and in view of the evidence led before the lower trial Court, the state of the law, as well as the peculiar facts and circumstances of the 1st Respondent’s case, the
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learned trial Judge was right when he entered Judgement on 4-4-19 in favour of the 1st Respondent on is claim relying as it were on the decision of Hon. Justice Adegoke of the Federal High Court, Asaba Division, in SUIT NO:FHC/ASB/CS/76/2018. (Grounds 3 and 4 of the Grounds of Appeal).
3. Whether and by virtue of Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 (Forth Alteration No. 21) Act, 2017, the learned trial Judge was right when he proceeded to entertain and deliver judgment on the Suit of the 1st Respondent on the 4th day of April, 2019, despite the 1st Respondent having filed his Statement of Claim 73 days after the cause of action arose. (Ground 1 of the Ground of Appeal).
The 1st and 2nd respondents adopted the issues for determination in the appellant’s brief.
The 1st respondent filed a notice of preliminary objection praying for-
1. AN ORDER to strike out the Record of Appeal (in this case) purportedly complied and transmitted to this Honourable Court by the Appellant, in violation of Order 8 Rules 1 & 4 of the Court of Appeal Rules, 2016.
2. AN ORDER to strike out the 42 Page Appellant’s Brief of Argument of 10th May 2019, same having filed with in violation of Order 19 Rule 6 (a) of the Court of Appeal Rules, 2016.
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3. AN ORDER to strike out the incongruous Notice of Appeal filed by the Appellant on 17th April 2019, in distortion of the symmetrical arrangement of parties, as derived from the substantive Suit and Judgment of the trial Federal High Court.
The grounds for the objection are-
1. Without the lower Court’s Registrar and the leave of Court, the Appellant – by himself purportedly compiled the Record of Appeal in this case, contrary to the mandatory provision of Order 8 Rules 1 & 4 of the Court of Appeal Rules, 2016.
2. The Appellant’s Brief of Argument is in excess of 35 pages, contrary to the mandatorily prescription in Order 19 Rule 6 (a) of the Court of Appeal Rules, 2016.
3. The Notice of Appeal is incongruous and a distortion in the symmetrical arrangement of parties, as derived from the substantive Suit and Judgment of the trial Federal High Court.
4. In the absence of a competent Notice of Appeal, Record of Appeal and Brief of Argument, the jurisdiction of this Honourable Court cannot be validly activated.
?
Let me start with the first ground of objection that the
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record of this appeal purportedly compiled and transmitted to this Court by the appellant be struck out for having been compiled and transmitted here contrary to Order 8 Rules 1 and 4 of the Court of Appeal Rules 2016.
I have carefully read and considered the arguments in the 1st respondent’s brief and appellant’s reply brief on this issue. It is clear from the record of this appeal, consisting of volumes 1 and 2 and an additional record, that it was compiled and transmitted here by Learned Counsel for appellant, Chief Nelson O. Imoh. He signed page 3 of Volume one of this record of appeal as the person who compiled and transmitted the record. The name of his Law firm Nelson & Nelson Chambers is also stamped at the foot of every page of the three volumes of this record of appeal.
Learned Counsel for the 1st respondent has rightly submitted that the said record was compiled in violation of Order 8 Rules 1 and 4 of the Court of Appeal Rules which provide that-
“1. The registrar of the Court below shall within sixty days after the filing of a notice of appeal compile and transmit the Record of Appeal to the Court.
4. Where at the
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expiration of 60 days after the filing of the notice of appeal the registrar has failed and or neglected to compile and transmit the Records of Appeal in accordance with the preceding provisions of this Rule, it shall become mandatory for the Appellant to compile the records of all documents and exhibits necessary for his appeal and transmit to the Court within 30 days after the registrar’s failure or neglect.”
The notice of that appeal that commenced this appeal was filed on 25-4-2019. Without waiting for the Registrar of the trial Court to compile and transmit or fail to compile and transmit the record of this appeal, Learned Counsel for the appellant compiled the record on 2-5-2019 and transmitted same to this Court on that same date, 2-5-2019, 7 days after the notice of appeal was filed. This is clearly in violation of Order 8 Rules 1 and 4 of the Court of Appeal Rules as the 60 days period within which the Registrar should compile the record of the appeal had not expired, when the record of this appeal was compiled and transmitted here.
Learned Counsel for the 1st respondent has urged this Court to treat the record as incompetent and strike it
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out and strike out this appeal for lack of a competent record of appeal.
Learned Counsel for the appellant has argued in reply that the limitation of the time within which an appeal shall be heard and disposed of to within 60 days from the date of the filing of the appeal by S.285(14) of the Constitution of the Federal Republic of Nigeria (1999 Constitution) as amended by the Fourth Alteration, obviously makes it impossible to comply strictly with Order 8 Rules 1 and 4 of the Court of Appeal Rules 2016 as the 60 days period prescribed therein for the Registrar of the trial Court to compile the record of appeal covers the same period for the hearing and disposal of the appeal.
This argument cannot justify the self help action of Learned counsel for the appellant compiling and transmitting the said records, without first seeking for and obtaining the leave of Court to depart from the said Order 8 Rules 1 and 4 of the Court of Appeal Rules 2016, an order that the appellant compiles and transmits it and an order abridging the time for him to do so.
Be that as it is, this Court would condone this flagrant non compliance with Order 8 Rules 1 and 4 of the 2016 Court of Appeal Rules ?
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by the appellant in compiling and transmitting here the record of this appeal, by virtue of Order 21 Rules 2 and 3 (1) and (2) of the same Court of Appeal Rules 2016 which provide thusly-
“2. The Court may direct a departure from these Rules in anywhere this is required in the interest of justice.
3.(1) The Court may, in an exceptional circumstance, and where it considers it in the interest of justice so to do, waive compliance by the parties with these Rules or any part thereof.
(2) Where there is such waiver of compliance with the Rules, the Court may, in such manner as it thinks right, direct the Appellant or the Respondent as the case may be, to remedy such non-compliance or may, notwithstanding, order the appeal to proceed or give such directions as it considers necessary in the circumstance.”?
The reasons for this departure from the said Order 8 Rules 1 and 4 are as follows. Firstly, the Registrar of the trial who had the primary duty to compile and transmit the said record has certified every page of the said record of this appeal as the true copy of the record of the proceedings and processes of the
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trial Court in the suit that has led to this appeal, which records are in his custody. As provided by S.105 of the Evidence Act 2011 “Copies of documents certified in accordance with Section 104 may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.”
Secondly, the parties herein have filed their respective briefs. Thirdly, there is nothing to show or suggest that the 1st respondent or any other party has suffered any prejudice as a result of the compilation of the record of this appeal in violation of Order 8 Rules 1 and 4 Court of Appeal Rules 2016. Finally, this appeal having been heard to conclusion and judgement reserved, it would not be in the interest of justice to strike it out due to a harmless non compliance with procedural Rules of Court and considering especially that after the expiration of 60 days from 25-4-2019 when the notice of this appeal was filed, the appellant’s appeal can no longer be heard and determined by virtue of S.285(14) of the 1999 Constitution as amended.
As held by the Supreme Court in U.T.C (Nig) Ltd. v. Pamotei (1989) 2 NWLR (Pt. 103) 244 at
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296 “Rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not to defeat justice. The rules are therefore aids to Courts to read rules in the absolute without recourse to the justice of the cause, to my mind, will be making the Courts slavish to the Rules. This certainly is not the raison d’etre of rules of Court.” See also Salami v. Bunginimi & An. (1998) 9 NWLR (Pt. 565) 235 8 and Combe v. Edwards (1878) L.R.P.D. 103 at 142. The Supreme Court had held in Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387, that “It is well settled law that a breach of a rule of practice can only render a proceeding an irregularity and not a nullity. Such an irregular proceeding can only be set aside if the party affected acted timeously and before taking a fresh step since discovery of the irregularity.” See also Duke v. Akpabuyo LG. (2005) LPELR – 963 (SC).
The first ground of objection therefore fails and is hereby dismissed.
?
Let me now consider the second ground of the 1st respondent’s preliminary objection that the appellant’s brief has 42 pages contrary to Order 19 Rule 6(a) that
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limits the number of pages of appellant’s brief to 35.
I have considered the arguments of both sides on this issue. It is obvious that the appellant’s brief has 42 pages in violation of Order 19 Rule 6(a) of the Court of Appeal Rules 2016. But I am not inclined to agree with the argument of Learned Counsel for the 1st respondent that the brief is for that reason incompetent and should be struck out in the interest of justice.
The 1st respondent has not shown or suggested that he is prejudiced in any way by the appellant’s non compliance with Order 19 Rule 6 (a) of the Court of Appeal Rules. A strict adherence to Order 19 Rule 6(a) would occasion grave injustice against the appellant who would suffer an irreversible loss of right to have his appeal heard, as the 60 days period for this appeal to be heard and disposed of, would expire on 16-6-2019.
For the above reasons, I waive appellant’s compliance with Order 19 Rule 6(a) of the Court of Appeal Rules 2016 and deem the appellant’s brief as proper.
Ground 2 of the preliminary objection is hereby dismissed.
?
Let me now consider the 3rd ground of objection that the notice of appeal be struck
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out as it contains “distortion of the symmetrical arrangement of parties.”
I have carefully read and considered the arguments of both sides on this issue.
The 3rd defendant in the suit in the trial Court brought this appeal as appellant. He grouped the plaintiff and 1st and 2nd defendants in that suit as respondents to this appeal. There is nothing wrong with the Constitution of this appeal as regards the parties herein. Any party to the suit in the trial Court, who is not an appellant in an appeal against the decision of the trial Court in the suit, ought to be described as a respondent. The parties to this appeal are correctly arranged and described in the notice of appeal. I don’t see what is “dramatic, in congruous and asymmetrical” about the arrangement of the respondents in the notice of appeal. 1st respondent has suggested that the proper arrangement should have been the Independent National Electoral Commission as 2nd respondent and the All Progressive Congress (APC) as 3rd respondent. He has not suggested that he has suffered any prejudice by the present arrangement in the notice of this appeal which placed All Progressive Congress (APC) as
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2nd respondent and Independent National Electoral Commission as 3rd respondent.
There is no law or Rule that prescribes a mandatory sequence for listing the names of the parties to an appeal. What is important is that all the parties to the suit are named or listed as parties in the appeal which is a rehearing of the suit.
The notice of appeal complies with Order 7 Rule 2(1) of the Court of Appeal Rules 2016 which requires that the notice of appeal should inter alia state the names of the parties, without prescribing in what sequence they should be listed. The exact of Order 7 Rule 2(1) reads thusly-
“2(1). All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for on
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such parties.”
This 3rd ground of the 1st respondent’s preliminary objection is meaningless and an exercise in pedantry. It is dismissed.
The grounds for the 1st respondent’s preliminary objection are frivolous and time wasting. The preliminary objection is hereby dismissed.
Let me delve into the merit of the issues raised for the determination of this appeal in the appellants brief adopted by the briefs of the 1st and 2nd respondent.
4. Let me start with issue No. 1 which asks Whether and in view of the extant provision of Section 285(10) of the Constitution of the Federal Republic of Nigeria 1999 (Forth Alteration No. 21) Act, 2017, the learned trial Judge acted with jurisdiction when he proceeded to deliver Judgment in the 1st Respondent’s case.
I have carefully read and considered the arguments in all the above briefs on this issue.
The substance of the arguments of Learned Counsel for the appellant is that the trial Court delivered its judgment in the suit before it on 4-4-2019, 183 days from the date the suit was filed contrary to S.285(10) of the 1999 Constitution as amended by Fourth Alteration, that the trial Court lacked
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the jurisdiction to deliver the judgment after 180 days from the date the suit was filed being 4-10-2018, that the said judgment delivered by it on 4-4-2019 is a nullity, that the trial Court lacked the jurisdiction to extend the period beyond 180 days to enable it deliver its judgment, that such an order of extension is a nullity and that the only option open to the trial Court after the 180 days was to strikeout the suit.
Learned Counsel for the 1st respondent argued in reply that the appellant’s arguments on the date of commencement of the suit at the trial Court are contradictory, that under issue No.1, he argued that the suit commenced on 4-10-2018, but under issue No. 2, it is argued that the suit was statute barred because the statement of claim was filed on 12-12-2018, 73 days after the cause of action arose, that in view of this mutually exclusive arguments, this Court should strike out issues Nos. 1 and 3, that the appellants contention in this appeal that the suit commenced on 4-10-2018 is inconsistent with his contention in the trial Court that it commenced on 12-12-2018 when the statement of claim was filed pursuant to the order of the trial
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Court on 4-12-2018, that the appellant cannot approbate and reprobate, that the trial Court’s order of 4-12-2018 that pleadings be filed, whereupon “a Statement of Claim was made by the 1st Respondent, does not in any way suggest that a new Suit was filed. That the Trial Court had held that “Noteworthy is the undisputed fact that the Suit No. has not changed, as well as the proceeding which remained before the same Judge. The import of the instant decisions is to strengthen the argument that the filing date will not be countenanced as having commenced on 12th December, 2018, but when the primary Suit was filed, the said date which has not been argued to violate any constitutional limitation.”
Learned Counsel for the 3rd respondent argued that “In view of the immutability of the effect of the provision of Section 285(10) of the Constitution of the Federal Republic of Nigeria 1999, as amended, we concede this point that a judgment delivered outside the 180 days as prescribed is a nullity, having been delivered in contravention of the Constitution and thus without jurisdiction.”
?
Let me now consider the merits of the above arguments.
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The suit leading to this appeal was commenced by means of Originating Summons filed on 4-10-2018. The said Originating Summons is contained in the additional record of this appeal.
All sides filed and exchanged several affidavits and written addresses on the case in the Originating Summons. Following the conclusion of hearing on the Originating Summons, the matter was adjourned to 4-12-2018 for judgment.
In its judgment rendered on 4-12-2018, the trial Court stated that it was going to consider the various notices of preliminary objections filed by the defendants before it proceeds to determine the substantive suit if need be. It considered the objections and upheld those of the 2nd and 3rd defendant that the suit should not have been commenced by Originating Summons as the facts are hotly contentious and cannot be tried by affidavit evidence. It then proceeded to hold thusly-
“In sum, the NPOs of the 2nd and 3rd Defendants succeed only on the ground that the suit is not suitable of resolution by affidavit evidence and to be commenced by Originating Summons. The NPOs fail on other grounds.
Considering that this a pre-election matter with a tightly
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controlled timeframe for disposition, I do not think however that the proper order to make is an order striking out the suit. The proper order in my view is an order directing parties to file pleadings. In the light of the forgoing, and specifically my partial finding in favour of the NPOs of the 2nd and 3rd Defendants, I hereby direct all parties in this suit to file their pleadings for this suit to be heard under the Writ of Summons procedure. In deference to the provisions of Section 285 of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No 21) Act, 2017 which commands an expedited hearing of pre-election matters, and in line with the Order of accelerated hearing issued by this Court on the 10th day of October, 2018, the Plaintiff is hereby directed to file and serve its Statement of Claim and supporting processes within 7 days from today, in any event no later than 12th day of December, 2018.
The Defendants shall file their Statement of Defence and supporting processes within 7 days of service on them of the Statement of Claim and its supporting processes, this to be no later than the 20th day of December, 2018 provided
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that the plaintiff files and serve the Defendants with the Plaintiff’s pleadings by the 12th day of December, 2018 as ordered by the Court.
The Plaintiff shall file and serve his reply pleadings within 7 days of service on him of the Defendants pleadings, this to be no later than the 30th day of December, 2018 provided that the Defendants file and service on the Plaintiff the Defendants pleadings by the 20th day of December, 2018 as ordered by the Court.”
The trial of the suit proceeded on the basis of the pleadings filed by all the parties. Following conclusion of evidence on 18-3-2019, the case was adjourned to 29-3-2019 for adoption of final addresses. The said addresses were adopted on 29-3-2019 and the case was adjourned to 11-4-2019 for judgment. But on 4-4-2019, the trial Court rendered its final judgment in the suit. The three defendants to the suit had again filed notices of preliminary objection to the suit on other grounds. The trial Court considered all of them in its judgment, one of the grounds for the objection of the 3rd defendant (appellant herein) is that the suit had become statute barred with the filing of the statement of claim
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on 12-12-2018 pursuant to the order of the trial Court of 4-12-2018. The trial Court in its judgment held concerning this ground of the 3rd defendant’s objection thusly-
“The above represents summary of arguments and submissions of parties as regards the 3rd Defendant’s NPO.
Having carefully considered the parties’ arguments, my summary view is that the NPO lacks merit and must fail. The NPO is predicated on the assumption that this suit commenced on 12/12/18 when the Statement of Claim was filed. This is a wrong assumption. The case commenced on 04/10/18 when the Originating Summons was filed, being clearly within 14 days reckoned from the 30/09/18 when the primary election was held. But for the Court ordering the parties to file pleadings, this matter would have been disposed of on the 04/12/18 when the Court delivered its initial judgment on the suit. In any event, the Statement of Claim bore the same suit number that the Originating Summons bore, and this was not challenged by any of the parties, confirming that the parties understood that it is still the same case that they were fighting. In any event, having delivered a decision on 04/12/18
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ordering parties to file pleadings, this Court is functus officio on that issue, and thus the decision cannot be used as a basis for an NPO. If any party is not satisfied, the only remedy open is an appeal over that decision. This has not been done by any of the parties.
On the basis of the foregoing, I find no merit with the 3rd Defendant’s NPO and therefore accordingly dismiss same.”
There is no ground of this appeal complaining against the holding of the trial Court that the suit was “commenced on 4-10-2018 when the Originating Summons was filed, being clearly within 14 days reckoned from the 30-9-2018 when the primary election was held.”
By not appealing against this holding, the parties to this appeal accepted it as correct, conclusive and binding upon them and cannot be heard to argue to the contrary. See Iyoho v Effiong (2007) 4 SC (Ptiii) 90 and Dabup V Kolo (1993) 12 SCNJ 1.
It is settled that the suit leading to this appeal was commenced on 4-10-2018 and that the trial Court delivered judgment in the suit on 4-4-2019. It is glaring that from 4-10-2018 to 4-4-2019 is 183 days. So the judgment of the trial Court was delivered after the
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expiration of 180 days from the date the suit was filed contrary to S.285(9) of the 1999 Constitution as amended which provides thusly- “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.”
The trial Court lacked the jurisdiction to deliver the judgement in the suit on 4-4-2019. The judgment delivered on that date is therefore a nullity and is hereby set aside. See Ugba v. Suswam (2014) 14 NWLR (Pt.1427) 264 at 310, ANPP V. Goni (2012) 7 NWLR (Pt.1298) 147.
In the light of the foregoing, issue No. 1 is resolved in favour of the appellant.
Let me now consider issue No. 2 which asks- “Whether and in view of the evidence led before the lower trial Court, the state of the law, as well as the peculiar facts and circumstances of the 1st Respondent’s case, the learned trial Judge was right when he entered Judgement on 4-4-19 in favour of the 1st Respondent on is claim relying as it were on the decision of Hon. Justice Adegoke of the Federal High Court, Asaba Division, in Suit
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NO:FHC/ASB/CS/76/2018.”
In suit No. FHC/ABJ/CS/509/I8 brought by Odjebobo Desire Onayefeme and Lyndon L.O.I. Ugbome for themselves and Delegates at the Delta State APC Ward/Local Government Congresses held on 5th and 12th May, 2018 as plaintiffs against the National Chairman, All Progressive Congress, The National Working Committee, All Progressive Congress, The Inspector General of Police, The Director, State Security Services and the Independent National Electoral Commission as 1st to 5th defendants respectively, the Federal High Court at Abuja, Per A.I. Chikere J on 19-6-2018 entered a consent judgment against the 1st and 2nd defendants, the plaintiffs having discontinued the suit against the 3rd to 5th defendants in the following terms-
“NOW THE PARTIES HAVE AGREED TO SETTLE THIS SUIT UPON THE FOLLOWING TERMS AND CONDITIONS:
?1. That the 1st and 2nd Defendants (the Party) fully accept that the ward and Local Government Congresses conducted by the Alhaji Sanni Dododo’s Committee and the result there from received by the Party, is the correct representation of what transpired at the Congresses of the All Progressives Congress (APC)
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on both the 5th and 12th of May 2018 in Delta State with the election of 270 ward executives, 25 Local Government Area Executives, 5 delegates per ward for the Local Government Area and State Congresses respectively and 3 delegates per Local Government of the Party which is to be held on the 23rd June, 2018 or any other date fixed by the Party.
2. That the 1st and 2nd Defendants, being representatives of the All Progressives Congress (APC) in Nigeria duly accept and recognize the Ward and Local Government Congresses conducted by the Alhaji Sanni Dododo’s Committee and the result therefrom received by the 1st and 2nd Defendants, as the correct representation of what transpired at the Congresses of the All Progressive Congress (APC) on both the 5th and 12th of the May, 2018 in Delta State; with the election of 270 Ward Executives, 25 Local Government Area Executives, 5 delegate per Ward for the Local Government Area and State Congresses respectively and 3 delegates per Local Government Area for the National Convention of the Party (APC) which is to be held on the 23rd June, 2018 or any other date fixed by the Party.
3. That the 1st and 2nd Defendants
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accept that the Wards and Local Government Area (LGA) Congresses of the All Progressive Congress of the 5th and 12th May 2018 in Delta State were validly conducted by Alhaji Sanni Dododo as Chairman of the Congress Committee duly appointed by the Party.
4. That the 1st and 2nd Defendants recognize and accept that the Wards and Local Government Area (LGA) Congresses of the All Progressive Congress of the 5th and 12th May 2018 in Delta State were validly conducted by Alhaji Sanni Dododo as Chairman of the Congress Committee.
5. That the 1st and 2nd Defendants accept and recognize that at the All Progressive Congress Ward congresses conducted on the 5th of May, 2018 in Delta State by Alhaji Sanni Dododo, Party offices/delegates were contested for and persons emerged as received by the National Secretarial of the Party and that only the valid delegates who emerged from this congress can produce a State Executive for the State as done on the 19th day of May, 2018
6. That the 1st and 2nd Defendants accept and recognize that at the All Progressive Congress (APC) Local Government Area Congresses conducted on the 12th May, 2018 in Delta State by the
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Alhaji Sanni Dododo Committee, all the 26 Party offices were contested for an principal officers validly and lawfully emerged in each of the 25 Local Government Areas of the Party.
7. That the 1st and 2nd Defendants/Respondents accept and recognize that at the All Progressive Congress Local Government Area Congresses conducted on the 12th May, 2018 in Delta State by the Aihaji Sanni Dododo Committee, 3 Special Delegates per Local Government Area were elected as delegates for the National Convention of the Party proposed for 23rd June, 2018 or any other date agreed by the National Executive Committee/National Working Committee of the Party.
8. That each party in this suit shall bear its own cost of the proceedings.
9. That this Terms of Settlement shall upon endorsement by parties be made the Judgement of this Honourable Court in this case.
AND AFTER HEARING DR. ALEX A. IZINYON (SAN) with NELSON O. IMOH ESQ., BELLO K. ABU ESQ, FRIDAY O. IZINYON ESQ, ALEX IZINYON II ESQ., LUCKY AJOKPERINIOVO ESQ., COLLINS DANIEL EYO ESQ., I.A. JESSA ESQ., and O.A. IBADIN ESQ., Counsel for the Plaintiff adopting the terms and urging the Court to enter same as
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Consent Judgement.
AND EBUKA NWAEZE ESQ., Counsel for the 1st and 2nd Defendants not opposing
IT IS HEREBY ORDERED:
1. That the Terms of Settlement dated 1st day of June, 2018 but filed on the 5th day of June, 2018 is hereby entered as Consent Judgment between parties.
2. No order as to cost.”
On 4-10-2018, the 1st respondent herein, as plaintiff, commenced Suit No. FHC/ABJ/CS/1085/2018 which has led to this appeal and in the statement of claim therein claimed for the following reliefs-
“1. A DECLARATION that the list of elected Local Government Executives approved by Alhaji Sanni Dododo and decided upon in the Consent Judgment (entered on 19th June 2018 by Hon Justice A.I. Chikere, between ODJEBOBO DESIRE ONAYEFEME & ANOR v. THE NATIONAL CHAIRMAN – APC & ANOR. In Suit No. FHC/ABJ/CS/509/2018 is the only lawful list of elected Local Government Executives which ought to be recognized, relied on, and used to conduct the APC Delta State 2019 governorship primary election, of 30th September, 2018.
?2. A DECLARATION that the Defendants are by virtue of Section 6 (6), 287, 222, 223 & 224 of the 1999 Constitution (as amended),
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Article 7(i) (viii) & (ix), Article 20 (v) of the APC Constitution, including the APC Guidelines for the Nomination of Candidates for the 2019 General Elections – Indirect Primaries, bound to accept, recognize, and use the list of elected Local Government Executives approved by Alhaji Sanni Dododo and decided upon in the Consent Judgment (entered on 19th June 2018 by Hon. Justice A.I. Chikere, between ODJEBOBO DESIRE ONAYEFEME & ANOR. v. THE NATIONAL CHAIRMAN- APC & ANOR in Suit No. FHC/ABJ/CS/509/2018) to conduct the APC Delta State 2019 governorship primary election, of 30th September, 2018.
3. AN ORDER to set aside and/or nullify the APC Delta State 2019 governorship primary election conducted on 30th September, 2018, in derogation from the List of elected Local Government Executives approved by Aihaji Sanni Dododo and decided upon in the Consent Judgment (entered on 19th June, 2018 by Hon Justice A.I. Chikere, between ODJEBOBO DESIRE ONAYEFEME & ANOR. v. THE NATIONAL CHAIRMAN – APC & ANOR. in Suit No. FHC/ABJ/CS/509/2018) and in violation of Sections 6 (6), 287, 222, 223 & 224 of the 1999 Constitution (as amended),
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Article 7(i) (iv) (viii) &(ix), Article 20 (v) of the APC Constitution, including APC Guidelines for the Nomination of Candidates for the 2019 General Elections – Indirect Primaries.
4. AN ORDER for the 2nd Defendant to forthwith conduct a fresh Delta State 2019 governorship primary election, with the Elected List of Local Government Executives approved by Alhaji Sanni Dododo and decided upon in the Consent Judgment (entered by Hon Justice A.I. Chikere, between ODJEBOBO DESIRE ONAYEFEME & ANOR. v. THE NATIONAL CHAIRMAN – A – C & ANOR.
5. AN ORDER OF PERPETUAL INJUNCTION restraining the 3rd Defendant from parading himself as the lawfully elected Candidate of the 2nd Defendant or taking benefit of the 1st Defendant’s Publication.
6. Any other Order(s) this Honourable Court deems fit and appropriate to make in the circumstance.”
The trial Court in the concluding part of its judgment stated thusly- “I have fully reviewed this case. As I stated at the very beginning, during the rendition of the background facts giving rise to this suit, the suit is on the validity of the primary election of the 2nd
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Defendant held to determine its candidate for the gubernatorial elections for Delta State. The theory and foundation of the suit rests is that the delegates list that ought to have been used; that is, that persons who should participate as delegates to vote for the candidates in the said primary election, should have consisted of the Ward and Local Government Executives of the party in the 270 Wards and 25 Local Government Areas of the State who emerged from the Ward and Local Government Congresses of the party conducted in the state in May 2018 by a Committee set up by the National Working Committee of the party headed by an Alhaji Sanni Dododo. This list was said to have been endorsed by the Consent Judgment of this Court in Suit No. FHC/ABJ/CS/509/2018 dated 19th June 2018 presided over by Chikere, J and was admitted as Exhibit V010. This consent judgment was based on a Terms of Settlement executed by the contending parties, admitted as Exhibit V08. But in the primary election itself which took place on 30/09/18, a different list was allegedly used, shown as Exhibit V011, whereas what should have been used was Exhibit V07.
Because this suit is cantered
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on the validity of the participating delegates/executives in the said primary election, being aware of the pendency of an earlier Suit No. FHC/ASB/CS/76/2018 pending before this Court, presided over by my Lord Hon. Justice T.B. Adegoke, and which suit among other objects was seeking to determine the question of the valid and authentic executives/delegates of the 2nd Defendant for the primary elections in Delta State, including the gubernatorial primaries that is the subject of this suit, and which suit had been filed earlier in time to this suit and had as a matter of fact made substantial progress, this Court had referred the parties to the pendency of that suit in the course of the present proceedings, and had posed the question to counsel of the possible impact of that case to the present suit. The Court had asked directly if the outcome of that suit will not have a bearing or adequately and completely dispose of the rights of the parties in this suit. Counsel were not unanimous and were somewhat ambivalent on what will be the true effect of a judgement in that suit vis–vis the present suit.”
Learned Counsel for the appellant has argued that
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“Clause 14(iii) of Exhibit VO5 pleaded by the 1st Respondent is regrettably against his interest, and it goes to strengthen the case of the Appellant both in his pleadings at paragraph 41 of the Appellant’s Statement of Defence dated 18/1/19, and the oral testimonies of DW1 Lyndon Ugbome on the 18th day of March, 2019 that defegates to the APC Governorship primaries of 30/9/18, were not exclusive to only party officials of the 2nd Respondent APC, but included, but certainly not limited to all the persons captured in Clause 14(iii) of Exhibit VO5-Guidelines for the nomination of candidates for 2019 General Elections 2019-Indirect primaries.”
Learned Counsel for the 1st respondent submitted that sufficient evidence was led by the 1st Respondent in support of his case, that ample evidence was placed before the trial Federal High Court to show that the approved List of Local Government Executives and Ward Executives that emanated from the recognized Ward and Local Government Congresses were part of the Delegates forming the Electoral College for the Indirect Primaries at the APC Delta State 2019 governorship primary election, that it can be safely said that the
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gubernatorial primary election conducted by the APC in Delta State on 30th September 2018 is entirely inconsistent with the provisions and tenor of the Electoral Act, APC Constitution, 1999 Constitution (as amended) and the extant Consent Judgement in Exhibit H.
?
So both sides agree that the Wards and Local Government executives of the 2nd respondent in all the wards and Local Government areas of Delta State do not exclusively constitute the Electoral College for the purpose of nominating a candidate of the party for the election of Governor of Delta State. The composition of the said Electoral College is prescribed in Article 2(iv) of the 2nd respondent’s Constitution as amended in October 2014 and Art 14(iii) of the 2nd Respondent’s Guidelines for the Nomination of Candidates for the 2019 General Election as follows-
“III. For Governorship Primaries:
An Electoral College comprising of the following;
a) 13 Principal Officers of the Ward Executive Committee as stated below;
1. Chairman
2. Vice-Chairman
3. Secretary
4. Women Leader
5. Youth Leader
6. Organizing Secretary
7. Treasurer
8. Legal Adviser<br< p=””
</br<
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9. Publicity Secretary
10. Welfare Secretary
11. Auditor
12. Financial Secretary
13. Disabled Leader
b. All Members of the Local Government Executive Committee from all Local Government Areas in the State.
c. All Members of the State Executive Committee
d. All members of the National Executive Committee from the State
e. All Members of the Board of Trustees and national Caucus from the state
f. All statutory Delegates to the National Convention
g. All Elected Persons from the State
Members shall vote by Secret Ballot at the State Capital and the aspirant with highest number of votes shall be announced as the winner accordingly.”
There are 7 classes of members of the Electoral College. The Ward and Local Government Executive are two of those classes (a and b). So the 7 classes of members of the Electoral College are entitled to vote in the primary election to nominate the 2nd respondent’s candidate for the general election of Governor of Delta State. So the list of Ward and Local Government Executives elected by the Ward and Local Government Congress conducted in May, 2018 by the Alhaji Sanni Dododo
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led committee of the National Working Committee of the 2nd respondent cannot be the list of the delegates that should vote in the said primary elections. The list of delegates should be larger than that to include other classes of delegates by virtue of Article 14 (iii) of the 2nd respondent’s 2019 Guidelines for nomination of its candidates for the general election.
Be that as it is, what is clear from the judgment of the trial Court is that the decision of the same Court presided over by Adegoke J in FHC/ASB/CS/76/2018 had decided the issues and reliefs claimed for in this case. This is clearly brought out the part of the judgement of the trial Court already reproduced at pages 25 to 27 of this judgment.
The trial Court having come to the conclusion that it had in suit No. FHC/ASB/CS/76/2018 Per Adegoke J., decided the same issues and reliefs now before it in the present suit No. FHC/ABJ/CS/1085/2018, should have struck out or dismissed the suit before it on the ground that the issues already decided by it in FHC/ASB/CS/76/2018 cannot be re-litigated in the present suit before it, that therefore it has no jurisdiction to do so and that suit No.
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FHC/ABJ/CS/1085/2018 is an abuse of Court process. The trial Court has no power to affirm its earlier decision on the same issue granting the same reliefs. Only this Court can affirm the decision of the trial Court in an appeal from a decision of that Court to it. The decision of the trial Court affirming and reiterating its earlier decision in suit No. FHC/ASB/CS/1085/2018 is hereby set aside for lack of jurisdiction, on the principle of estoppels per rem judicatam, being a judgment in rem that binds the world at large including the appellant herein and the trial Court.
Issue No. 2 is resolved in favour of the appellant.
Let me now determine issue No. 3 which asks “Whether and by virtue of Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 (Forth Alteration No. 21) Act, 2017, the learned trial Judge was right when he proceeded to entertain and deliver judgment on the Suit of the 1st Respondent on the 4th day of April, 2019, despite the 1st Respondent having filed his Statement of Claim 73 days after the cause of action arose.”
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While determining issue No.1, I had held that there is no ground of this appeal complaining
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against the holding of the trial Court that the suit leading to this appeal was commenced on 4-10-2018 when the Originating Summons was filed and not 12-12-2018 when the statement of claim was filed pursuant to the trial Court’s order of 4-12-2018 and that the suit was filed within 14 days from 30-9-2018 when the primary election was held.
As I had held earlier, by not appealing against this holding, the parties herein have accepted the holding as correct, conclusive and binding upon them. Having accepted this decision as correct and binding upon it, the appellant cannot be heard to argue to the contrary as he has sought to do in issue No. 3 that the suit was statute barred because the statement of claim was filed on 12-12- 2018, over 73 days after the cause of action arose on 30-9-2018.
See Dabup V Kolo( supra).
Issue No. 3 and the entire arguments thereunder are incompetent and are hereby struck out.
On the whole, this appeal succeeds. It is allowed. The judgement of the Federal High Court in Suit No. FHC/ABJ/CS/1085/2018 by Nnamdi O. Dimgba J on 4-4-2019 is hereby set aside.
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The 1st respondent shall pay costs of N400,000.00 to the appellant.
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ADAMU JAURO, J.C.A.: I had the opportunity of reading in advance the judgment just delivered by my learned brother, Emmanuel Akomaye Agim, JCA. I am in complete agreement with the reasoning and conclusion contained therein, to the effect that the appeal is meritorious.
I adopt the judgment as mine in allowing the appeal and abide by the consequential Orders, including that on cost.
MOHAMMED BABA IDRIS, J.C.A.: My learned brother EMMANUEL AKOMAYE AGIM, JCA afforded me the opportunity of reading before today a draft copy of the lead judgment just delivered.
?I adopt the judgment as mine with nothing further to add.
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Appearances:
Chief Nelson O. Imoh, Esq. with him, Collins Marshall, Esq.For Appellant(s)
Adejumoke Ademola, Esq. with him, Doyinsola Alege, Esq. and M.O. Ediawe, Esq. for 1st respondent.
Oladele Oyelami, Esq. with him, Oluwatoyin Akande, Esq. for 2nd respondent.
Ebuka Nwaeze, Esq. for the 3rd respondent
For Respondent(s)
Appearances
Chief Nelson O. Imoh, Esq. with him, Collins Marshall, Esq.For Appellant
AND
Adejumoke Ademola, Esq. with him, Doyinsola Alege, Esq. and M.O. Ediawe, Esq. for 1st respondent.
Oladele Oyelami, Esq. with him, Oluwatoyin Akande, Esq. for 2nd respondent.
Ebuka Nwaeze, Esq. for the 3rd respondentFor Respondent