ODJEBOBO DESIRE NAYEMEFE & ANOR v. GHAGHARA OCHUKO WISDOM & ORS (2019)

ODJEBOBO DESIRE NAYEMEFE & ANOR v. GHAGHARA OCHUKO WISDOM & ORS

(2019)LCN/13027(CA)

In The Court of Appeal of Nigeria

On Thursday, the 4th day of April, 2019

CA/B/08A/2019

RATIO

JURISDICTION: MATTERS OF JURISDICTION MUST BE CONSIDERED FIRST
It is true and it is trite law that objections to the jurisdiction are to be taken first before proceeding to hear the case on merits. See FBN PLC V T.S.A. INDUSTRIES (2010) 15NWLR (PT. 1216) 247; USMAN DAN FODIO UNIVERSITY V. KRAUS THOMPSON ORGANISATION LTD (2001) 15NWLR (PT.736) 305; UGO NGADI V FRN (2018) LPELR 43903 (SC).PER TUNDE OYEBANJI AWOTOYE, J.C.A.

EFFECT OF CONSENT OBTAINED BY FRAUD

It is equally trite law that a consent order obtained by fraud could be set aside by the Court that delivered it or another Court of competent jurisdiction. See RACE AUTO SUPPLY CO LTD & ORS V. AKIB (2006) 13NWLR PART 997 p. 373; AFEGBAI V. A.G. EDO STATE & ANOR(2001) 14NWLR PART 733 p.425.PER TUNDE OYEBANJI AWOTOYE, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

1) ODJEBOBO DESIRE NAYEMEFE
(UVWIE LOCAL GOVT. AREA ALL PROGRESSIVE CONGRESS WARD 2)
2) LYNDON L.O.I. UGBOME
(ETHIOPE EAST LOCAL GOVT. AREA ALL
PROGRESSIVE CONGRESS, WARD 2)
(THE NATIONAL CHAIRMAN, ALL PROGRESSIVE CONGRESS (APC) Appellant(s)

AND

1) GHAGHARA OCHUKO WISDOM
(STATE YOUTH LEADER, DELTA STATE ALL PROGRESSIVE CONGRESS)
2) LAZARUS IWARAH
(EX-OFFICIO ETHIOPE EAST LGA, DELTA STATE ALL PROGRESSIVE CONGRESS)
3) ILELEJI BLESSING EBABA-REKEME
(CHAIRMAN WARD 1, UVWIE LOCAL GOVT. AREA
[ALL PROGRESSIVE CONGRESS)
4) ODOGWU AZUBUIKE PHILIP
(CHAIRMAN, WARD 5, NDOKWA EAST LOCAL GOVT. AREA, ALL PROGRESSIVE CONGRESS)
5) EDADE E. ANTHONY
(CHAIRMAN WARD 9, NDOKWA EAST LOCAL GOVT. AREA ALL PROGRESSIVE CONGRESS)
6) ODILI UGBOMAH PARRISON (CHAIRMAN WARD 10, NDOKWA EAST LOCAL GOVT. AREA ALL PROGRESSIVE CONGRESS)
7) OYEM CHRIS IFEANYI
CHAIRMAN WARD 2, NDOKWA EAST LOCAL GOVT. AREA
ALL PROGRESSIVE CONGRESS)
(SUING FOR THEMSELVES AND ON BEHALF OF ALL THE EXECUTIVES OF ALL PROGRESSIVE CONGRESS ELECTED AT THE WARDS AND LOCAL GOVERNMENT AREAS OF ALL PROGRESSIVE CONGRESS HELD ON THE 5TH AND 12TH DAY OF MAY, 2018 RESPECTIVELY)
8) ALL PROGRESSIVES CONGRESS
9) COMRADE ADAMS OSHIOMHOLE
(THE NATIONAL CHAIRMAN ALL PROGRESSIVE CONGRESS APC) Respondent(s)

TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal against the decision of Delta State High Court delivered on 20/12/2018.
The Claimant at the lower Court instituted an action claiming as follows:
1. A DECLARATION that the Federal High Court Abuja lacked the jurisdiction to adjudicate on SUIT NO. FHC/ABJ/CS/509/2018 BETWEEN (1) ODJEBOBO DESIRE ONAYEFEME-WARD 2, UVWIE LGA, DELTA STATE, (2) LYNDON L.O.I. UGBOME-WARD 3, ETHIOPE EAST LGA, DELTA STATE (suing for themselves, and on behalf of all the Executives and Delegates at the Delta State APC Ward/ Local Government Congresses held on 5th and 12 May, 2018), AND (1) THE NATIONAL CHAIRMAN-ALL PROGRESSIVE CONGRESS (APC) (2) THE NATIONAL WORKING COMMITTEE?ALL PROGRESSIVE CONGRESS (APC) because there were no defendants in the Suit, as the parties named as defendants in the Suit are non-Juristic persons, therefore are not known to Law.
?2. A DECLARATION that the terms of settlement BETWEEN (1) ODJEBOBO DESIRE ONAYEFEME-WARD (2) UVWIE LGA, DELTA STATE, (2) LYNDON L.O.I. UGBOME-WARD 3, ETHIOPE EAST LGA, DELTA

STATE (suing for themselves and on behalf of all the Executives and Delegates at the Delta State APC Ward/Local Government Congresses held on 5th and 12th of May, 2018) AND (1) THE NATIONAL CHAIRMAN-ALL PROGRESSIVE CONGRESS (APC) (2) THE NATIONAL WORKING COMMITTEE ? ALL PROGRESSIVE CONGRESS (APC) in SUIT NO. FHC/ABJ/CS/509/2018, dated 1st June, 2018 is invalid, it having not been executed in line with the execution clause contained in the terms of settlement which requires the parties in the Suit to Sign same.
3. A DECLARATION that Sir E.I. Adoh-Ogbuta, Deputy National Legal Adviser who signed the Terms of Settlement in place of the National Chairman/National Working Committee (defendants in the Suit) is not a Party to the Suit, neither is he National Working Committee member and does not have authority/consent of the National Chairman or National Working Committee to so sign.
?4. A DECLARATION THAT Dare Oketade who signed the Consent Judgment on behalf of the National Chairman/National Working Committee did not have the authority or consent of parties to the Suit as the said office of Head of Legal is unknown to the All Progressive

Congress Constitution.
5. A DECLARATION that the Ward and Local Government Areas Congress of 5th and 12th May 2018 conducted by members of Delta State All Progressive Congress Committee headed by Hon. Emmanuel Chindah are the proper and acceptable Congress.
6. A DECLARATION of the consent judgment delivered by the Federal High Court, Abuja in SUIT NO. FHC/ABJ/CS/509/2018 BETWEEN (1) ODJEBOBO DESIRE ONAYEFEME-WARD 2, UVWIE LGA, DELTA STATE, (2) LYNDON L.O.I. UGBOME-WARD 3, ETHIOPE EAST LGA, DELTA STATE (suing for themselves, and on behalf of all the Executives and Delegates at the Delta State APC Ward/Local Government Congresses held on 5th and 12 May, 2018, AND (1) THE NATIONAL CHAIRMAN-ALL PROGRESSIVE CONGRESS (APC) (2) THE NATIONAL WORKING COMMITTEE ? ALL PROGRESSIVE CONGRESS (APC) null and void. It being that the Court lacked the jurisdiction to entertain the Suit and also lacked the powers to enter the terms of settlement as consent judgment because the condition precedent to entering the said terms of settlement as judgment of Court was not me, because the parties to the suit did not execute the terms of settlement by signing same as

required by the execution clause.
7. An order of Court setting aside the consent judgment delivered by the Federal High Court Abuja in SUIT NO. FHC/ABJ/CS/509/2018 BETWEEN (1) ODJEBOBO DESIRE ONAYEFEME-WARD 2, UVWIE LGA, DELTA STATE, (2) LYNDON L.O.I. UGBOME-WARD 3, ETHIOPE EAST LGA, DELTA STATE (suing for themselves, and on behalf of all the Executives and Delegates at the Delta State APC Ward/Local Government Congresses held on 5th and 12 May, 2018, AND (1) THE NATIONAL CHAIRMAN-ALL PROGRESSIVE CONGRESS (APC) (2) THE NATIONAL WORKING COMMITTEE?ALL PROGRESSIVE CONGRESS (APC) for same being null and void.
8. An Order perpetual injunction restraining the 1st and 2nd Defendants whether by themselves, their agents, servants or howsoever called from swearing-in, recognizing and/or dealing with any other Ward and Local Government Areas Executives of the All Progressive Congress (APC), Delta State, apart from persons whose names are contained in the Ward congress election results declared by Alhaji Usman Kutigi and four other members of Delta State All Progressive congress and the Local Government Congress election result declared by the

Committee headed by Chief (Hon.) Emmanuel Chindah.?

Learned counsel for the 4th Defendant R.E. EMUKPOERUO, raised a preliminary objection to the claim in the following terms:
?This suit is incompetent vests no jurisdiction in this Honourable Court and is a complete abuse of judicial processes which should be dismissed in its entirety.?

The ground of the objection was that the subject matter ?is a non justiciable intra ? party/domestic domestic affairs of a political party.?

After hearing the parties on the objection, the learned trial judge ruled as follows (inter alia):
I appreciate the fact that whenever the issue of jurisdiction is raised in any proceedings, it must be dealt with first before any further step is taken, it must also be noted that Court must resist the temptation of making any pronunciation on the main issue for determination in interlocutory proceedings.
In view of the above, I chose a middle course and that is the Court will reserve its ruling, hear from the parties and give judgment together with the ruling at the same time. This is to avoid any pit falls

earlier mentioned and to also order accelerated hearing.?
?
Miffed by the above decision the appellant through his counsel filed a Notice of Appeal containing three grounds of appeal.

The grounds of appeal excluding the particulars read as follows:
GROUND 1
The learned trial judge erred in law when he failed to consider on merit, the Appellants? Motion on Notice filed on 9th July, 2018 wherein the jurisdiction of the lower Court was challenged even after arguments of all parties have been taken by the lower Court.
GROUND 2
The learned trial judge erred in law when his lordship held that trial should proceed despite the application of the Appellant challenging the jurisdiction of the Court to entertain this suit.
GROUND 3
The learned trial judge of the lower Court erred in law when His Lordship held that he would reserve his ruling on the Appellants? Preliminary Objection and deliver judgment together with the ruling at the same time, despite the glaring abuse of Court processes before the lower Court.

After transmission of record of appeal to this Court, parties filed and exchanged briefs

of argument.

APPELLANT BRIEF OF ARGUMENT
Appellant brief was settled by ROBERT E. EMUKPOERUO ESQ. deemed filed on the 7th of March 2019. It is an appeal against the decision of High Court of Delta State and two issues were raised for determination.

ISSUE NO. ONE
Whether the lower Court was right in subsuming the Appellants preliminary objection to the motion on notice, filed by the 8th -9th Respondent.

Learned counsel argued that the gravamen of their objection was that a Court of competent jurisdiction had first adjudicated on the matter wherein Respondent as the claimants were not parties and that the trial Court did not have a supervisory or appellate jurisdiction over a Court of co-ordinate jurisdiction.

Learned counsel submitted that the decision of the trial Court that a resolution of the 5th ? 7th respondent objection would subsume the Appellants objection negated the Appellants right to a fair hearing of its objections as the arguments canvassed on the objections were different in fundamental respects. He referred the Court to UZUDA V EBIGAH (2009) ALL FWLR (PT 493) 1224 @ 1247: BAYOL V. AHEMBA (1999) 10 NWLR (PT 623)

281 and submitted that failure of the trial Court to give full consideration to the Appellants? preliminary objection suo motu subsuming the objections of the Appellants to those of the 8th -9th Respondents amounted to a denial of their fair hearing.

ISSUE TWO(2)
Whether the Court erred in law in reasoning on conclusion that the determination of the Appellants preliminary objection will delve into the substantive suit.

Learned counsel submitted that the trial Court reasoning that a determination of their preliminary objection would delve into the substantive suit was fundamentally faulty in that the sole issue raised in the preliminary objection was extrinsic to the substantive suit being an issue of non justiciability of the subject matter of the action and same was only based on points of law which required no evidence at all.

?Counsel submitted that the objection extensively relied on the provision of SEC. 272 of the 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA as amended and the Supreme Court decision in CUSTOMARY COURT OF APPEAL (EDO STATE) V AGUELE & ORS (UNREPORTED APPEAL NO; SC/123/2006 delivered on Friday 19th

June, 2017.

Learned counsel further submitted that once the issue of jurisdiction was raised, it could not be brushed aside as the objection challenged the powers of the Court to litigate the matter. It is a threshold matter. The merits of the 1st?7th Respondent suit became irrelevant until the Court had first determined the fundamental issue of jurisdictions.

Learned counsel submitted that the 1st to 7th respondents suit was not an election related matter as defined by SEC. 285 (14) of the 1999 CONSTITUTION of the Federation. He urged the Court to invoke Sec. 15 of Court of Appeal Act of FEDERATION, to hear, determine and uphold appellants preliminary objection.

In conclusion, Appellants urged the Court to allow the appeal and set aside the decision of the lower Court.

RESPONDENT?S BRIEF OF ARGUMENT
Respondent?s Brief was settled by Chief F.I. Obigbor Esq. and filed on the 7/2/19.

The Respondents herein raised one issue for determination, to wit:
Whether the trial judge erred in law and came to a perverse decision when after hearing argument both in support and in opposition held as

follows:.. I choose a middle course and that is the Court will reserve it ruling, hear the parties and give judgment together with ruling at the same time?. I therefore reserve my ruling for the reasons stated above, parties shall be allowed three days each to present their case especially as it election related matter.?

The Respondents argued that it is an appeal against the interlocutory ruling of the High Court Delta State where the lower Court choose a middle course and reserve its ruling on preliminary objection of the Appellants, till after hearing from parties and give judgment together with the ruling at the same time, to avoid delving into substantive suit.

Learned counsel submitted that the decision of the lower Court was a mixed of law and facts in which the Appellants must first seek and obtained leave of Court of Appeal and failure to do same renders the appeal incompetent and liable to be struck out.

Learned counsel submitted that it was desirable to take interlocutory issues together with substantive suit in order to save time and refer the Court to the case of PDP V ABUBAKAR (2007) 2 NWLR (PT 1018)

303 @ 391 Para D ? G.

Learned counsel further submitted that it was trite law that either a lower Court or Court of co-ordinate jurisdiction had inherent jurisdiction to set aside a null judgment or order and relied on ADEYEMI BERO V LSDPC (2013) 8 NWLR (PT 1356) 238 @ 304 Paras. C-F , 309, Para. F-H.

Learned counsel concluded that leave was required in an interlocutory appeal of mixed law and facts as in the extant case. The Appellants having failed to comply with the condition precedent, the appeal was bound to fail and urged the Court to dismiss the appeal with excruciating cost.

APPELLANT?S REPLY BRIEF
Appellants brief was settled by Robert Emukpoeruo Esq. and filed on 19/02/19.

Counsel to the Appellants responded that the Respondents objection did not comply with provision of ORDER 10 OF COURT OF APPEAL RULES 2016 and as such, their contention should be discountenanced.

Counsel further replied that the case of GARUBA V OMOKHODION was wrongly relied on by the 1st?7th Respondent in that case was distinguishable.

Counsel concluded that jurisdiction was fundamental to any proceeding and objection to

jurisdiction must completely be dealt with before further action, was taken and urged the Court to reject the argument of the 1st?7th Respondent and allow the appeal in accordance with the case of OKPALA v. IBEME (1989) 2 NWLR (PT 102) 208.

RESOLUTION
I have carefully gone through the submissions of learned counsel on all sides as well as the contents of the record of appeal.

It seems clear to me that the issue in this appeal and that of CA/B/08/2019 and CA/B/07/2019 being sister appeals are tied to the same apron string and share similar destiny. This judgment shall therefore abide the decision in the other sister appeals.
In Appeal No: CA/B/08/2019; APC & ANOR V GHAGHARA OCHUKO WISDOM & ORS in the lead judgment held as follows:
?RESOLUTION
I shall adopt the sole issue as framed by learned Senior Counsel for appellants in this judgment.
I have deeply considered the arguments of counsel on both sides and the contents of the Record of Appeal.
In resolving this sole issue it is pertinent to ask oneself what essentially is the claim of the claimants at the lower Court and what is the nature of the

preliminary objection of the Defendants?
In essence it is on the proceeding of the Federal High Court in Suit No. FHC/ABJ/CS/509/2018 BETWEEN ODJEBOBO DESIRE ONAYEFEME AND OTHERS VERSUS NATIONAL CHAIRMAN?APC AND OTHERS and the terms of settlement and default judgment obtained in the said proceeding at the said Federal High Court. (see paragraphs 32 -40 of the Joint Statement of Claim).
The 1st and 2nd Defendants (now appellants) joined issues with the claimant on paragraph 32 -40 asserting that the consent judgment terms of settlement were validly obtained as the consent of the National Chairman of the party was obtained before signing the terms of settlement. See paragraphs 19 and 20 of 1st and 2nd Defendants Statement of Defence.
The Preliminary Objection of the appellants at the lower Court hinges on the validity of the consent judgment obtained in FHC/ABJ/CS/509/2018 delivered o 19/6/2018.
The judgment in FHC/ABJ/CS/509/2018 which is the pillar on which the appellants? preliminary objection rests is what the claimants want the lower Court to set aside.
It seems clear to me that the resolution of the disputed facts

(joined issues) in the pleadings is crucial to the determination of the objection of Learned Senior Counsel to the appellants. Was the consent judgment obtained by fraud or validly obtained? The fulcrum on which the entire case at the lower Court turns depends on the resolution of some of the disputed facts which are closely intertwined with the points of law being raised by the parties.
It is true and it is trite law that objections to the jurisdiction are to be taken first before proceeding to hear the case on merits. See FBN PLC V T.S.A. INDUSTRIES (2010) 15NWLR (PT. 1216) 247; USMAN DAN FODIO UNIVERSITY V. KRAUS THOMPSON ORGANISATION LTD (2001) 15NWLR (PT.736) 305; UGO ?NGADI V FRN (2018) LPELR ? 43903 (SC).
But when there are facts which are crucial to the determination of the point of law the disputed facts have to be resolved first.
See EXXON MOBIL CORPORATION 5959 LAS CONILAS BOULEVARD IRVING TEXAS (USA) V ARCHIANGA (JP) & ORS (2018) LPELR ? 44979 (SC).
It is equally trite law that a consent order obtained by fraud could be set aside by the Court that delivered it or another Court of competent jurisdiction. See

RACE AUTO SUPPLY CO LTD & ORS V. AKIB (2006) 13NWLR PART 997 p. 373; AFEGBAI V. A.G. EDO STATE & ANOR(2001) 14NWLR PART 733 p.425.
If the claimant seeks the lower Court to set aside the consent judgment in FHC/ABJ/CS/509/2018 but the factual basis on which the prayer of the claimant is seeking its setting aside is being disputed by the respondent it does not seem right and in the interest of justice to allow the Respondent to use that same judgment to challenge the jurisdiction of the lower Court.
The disputed facts have to be resolved.
I am therefore in agreement with the learned trial judge when he reserved the ruling on the issue of jurisdiction raised by the appellants and proceeded to hear the substantive Suit.
I resolve the sole issue in favour of the Respondents.?
In line with the decision of this Court in Appeal No. CA/B/08/2019, I hold that this appeal lacks merit it is accordingly dismissed. suit No. HCK/57/2018 ODJEBOBO DESIRE ONAYEFEME & ANOR V. GHAGHARA OCHUKO WISDOM & ORS is hereby remitted back to the trial Court for conclusion of the trial.
N250,000 cost in favour of the 1st ? 7th

Respondents.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read hitherto the judgment just delivered by my learned brother TUNDE OYEBANJI AWOTOYE JCA. in respect of this interlocutory appeal. I am in complete agreement with the reasoning and conclusion that this appeal lacks merit and should be dismissed. I concede that ordinarily the issue of jurisdiction be settled one way or another before the substantive issues in controversy since the proper jurisdiction donates power to a Court to hear any matter. However in this case, even though it is not strictly speaking a pre-election matter within the contemplation of S. 285 (14) of the 1999 Constitution (as amended), as none of the parties is a candidate at an election, it is election related and a pre-primary matter. Thus, time is of essence in deciding all the issues thrown up by the parties. The current conventional wisdom is that in such matters, interlocutory appeals even on matters of jurisdiction are discouraged since all the issues in controversy including the challenge to the issue of jurisdiction can be decided at the end of hearing the claims of the parties. In the peculiar

circumstances of this case, the facts in dispute particularly relates to the authenticity of the consent judgment which is in consideration before the trial Court. The question of whether the trial Court has jurisdiction and the contentious facts before the trial Court can be determined together in the final substantive judgment of the trial Court. Suit No. HCK/57/2C18: Odjebobo Desire Onayefeme & Anor. v. Ghaghara Ochuko Wisdom & Ors. is remitted back to the trial Court for conclusion of the trial. Appeal Dismissed. abide by the order as to costs.

PHILOMENA MBUA EKPE, J.C.A.: I have had the benefit of reading in draft the Judgment of my learned brother, TUNDE OYEBANJI AWOTOYE, JCA, just delivered.
I agree entirely with the reasoning and conclusion reached. The appeal lacks merit, and it is accordingly dismissed by me. Suit No. HCK/57/2018 ODJEBOBO DESIRE ONAYEFEME & ANOR. V. GHAGHARA OCHUKO WISDOM & ORS is hereby remitted back to the trial Court for conclusion of the trial.
I abide by the order as to costs in the lead Judgment.

Appearances:

E.R. EmukpoeruoFor Appellant(s)

F.I. Obigbor with him,C.A. Akpe Esq. for 1st – 7th Respondents
Chief Adeniyi Akintola SAN with him, Oladele Oyelami Esq., O.O. Samuel Esq. and Lucky Ajokperiniovo Esq. for 8th & 9th Respondents
For Respondent(s)

Appearances

E.R. EmukpoeruoFor Appellant

AND