OLADIMEJI LATEEF AJIJOLA v. HON. FATIMA RASAKI & ORS
(2019) LCN/4831(SC)
In The Supreme Court of Nigeria
On Friday, the 18th day of January, 2019
SC.271/2018(CONSOLIDATED)
RATIO
CONSEQUENCE OF A CASE THAT IS STRUCK OUT BY A COURT
Now, the pertinent question is: what is the consequence of a case that is struck out by a Court This question was answered by this Court in the case of Panalpina World Transport Nigeria Ltd vs. J.B. Oladeen International & Ors (2010)19 NWLR (pt.1226) 1 @ 20 per ADEKEYE, JSC thus: ‘when a matter is struck out, it is still alive and kept in the Court’s general cause list and that – “when an order is made in respect of an application not heard on the merit, it amounts to striking out simplicter. Even where an Order of dismissal is made following a hearing which is not based on the merit, such Order is still considered in law a mere striking out. When a matter is struck out in the circumstances, there is liberty to relist. The simple explanation is that while the matter is disconnected from that date, it is still alive and kept in the Court’s general cause list and can be brought back to the hearing cause list… In such a case; the Plaintiff still has another opportunity to reopen the action after rectifying the deficiency that resulted in the striking out of the action. This is applicable even where the Court has not included in the Order of striking out that the Plaintiff has an option to relist. The matter struck out has not left the cause list – as it is still a pending case or pending cause. The same procedure applies even when a matter has been decided many years ago. Alor vs. Ngene (2007) ALL FWLR (pt.362) pp1836; (2007) 17 NWLR (pt.1062)163: Waterline Nigeria Limited vs. Fawe Services Limited (2003) FWLR (pt.163) p.88”. See also the Supreme Court case of Abey vs. Alex (1999)14 NWLR (pt. 637)148 at 162 PER WALTER SAMUEL NKANU ONNOGHEN,C.J.N.
HOW A CASE STRUCK OUT CAN BE REOPENED FOR FURTHER PROCEEDINGS TO BE TAKEN THEREIN
It is settled law that a case struck out is still pending and same can be reopened for further proceedings to be taken therein when and only when such suit is relisted by the Plaintiff and not when, as in the suit leading to the instance appeal, the Plaintiff goes back, prepares a completely new suit and files same afresh in the same Court. Appellant never relisted the suit that was struck out on 25th day of March, 2015 but filed a fresh case in the suit No. FHC/AD/C5/1612015 on the 26th March, 2015. I am of the view that suit No. FHC/C5/ABJ/1087/14 filed on 23/12/2014 and struck out on the 25/3/2015 from the cause list by the trial Court is still pending in Court. Furthermore, this Court in Sifax Nig. Ltd. V. Migfo (Nig.) Ltd. (supra) held that “a suit struck out is still alive and kept in the Court’s general cause list and can be brought back to the hearing cause list and the Plaintiff still has another opportunity to reopen the action only after rectifying the deficiency that resulted in the striking out of the action. PER WALTER SAMUEL NKANU ONNOGHEN,C.J.N.
POSITION OF THE LAW AS REGARDS A DECISION OF THE COURT NOT APPEALED AGAINST
In view of my opinion in issue No. 1 above, I will not bother myself with issue No. 2 as formulated by the learned counsel for appellant; it is clear that this appeal is an exercise in futility and is consequently doomed to fail as appellant did not appeal against the finding in suit No. FHC/CS/ABJ/1087/14 neither did he relist same, as that case is still pending in the Federal High Court’s cause list. In the case of Iyoho V. Effiong (2007) 11 NWLR (Pt. 1044) 31 at 54 -.55 paragraphs H – D this Court per Onnoghen J.S.C., as he then was, stated thus: “…However, it was improper for the respondent in hand to commence certiorari proceedings in suit No. C/MSC/68/98 in the face of the pending application in the Rent Control Court. I hold the view that suit No. C/MSC/68/98 was an abuse of the process of the Court However, going through the grounds of appeal at pages 238 -242 of the record, there is no ground attacking the decision of the lower Court on the issue of abuse of Court process neither has any issue been formulated before this Court relating thereto. It is settled law that a decision of the Court not appealed against is deemed accepted by the party against whom the decision was entered and therefore binding. I hold the view that granted, without conceding, the appellant’s issue for consideration in this appeal succeeds, the legal effect of that decision would not be sufficient to set aside the decision of the lower Court, in view of the fact that that Court had held in addition that the suit giving rise to the appeal before it was instituted is abuse of process and that decision remained subsisting and binding. Therefore, without even bothering oneself with the issue formulated by learned Counsel for the appellant, it is clear that this appeal is an exercise in futility and is consequently doomed to fail. PER WALTER SAMUEL NKANU ONNOGHEN,C.J.N.
WHETHER THE FEDERAL HIGH COURT HAS JURISDICTION TO ENTERTAIN PRE-ELECTION MATTERS
…we are now at this point because of the error of the trial Judge in striking out suit No. FHC/CS/ABJ/1087/14. The controversy regarding the concurrent jurisdiction of the Federal High Court, State High Court and High Court of the Federal Capital Territory, in entertaining pre-election matters had long been settled by this Court in the case of Salim v CPC (2013) 6 NWLR (pt 1351)501, where this Court considered the import of the provision of Section 87(9) of the Electoral Act 2010 (as amended) and held that the power to adjudicate in a pre-election matter is exercisable by either the Federal High Court or State High Court or High Court of the Federal Capital Territory. Section 87 (9) of the Electoral Act 2010 (as amended) provides as follows:- “Notwithstanding the provision of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with, in the selection or nomination of a candidate of a political party for election may apply to the Federal High Court or High Court of a State or Federal Capital Territory for redress.” The above provision of the law is crystal clear. It is an aberration to say that for the Federal High Court to entertain a pre-election matter, the main relief(s) must fall within the exclusive jurisdiction of the Court or that the main relief(s) must be shown to be against an agency of the Federal Government, in this instance, the 3rd Respondent. In the case of Lokpobiri v Ogola (2016) 3 NWLR (pt 1499) 238, this Court per Onnoghen, JSC (as he then was) held at page 363 paragraph H as follows: “…It is also not in doubt that the intention of the National Assembly in enacting the said Act is clearly to confer concurrent jurisdiction on the Federal High Court and State and Federal Capital Territory High Courts in pre-election matters so as to enlarge the range of choice of Courts available to an aggrieved party to ventilate his grievances.” My Lord went on to hold at page 365, D –E as follows:- “It is therefore my considered opinion that when the Federal High Court’s pre-election jurisdiction is invoked, the parties claim(s) and relief(s) must be in conformity with the provisions of the Electoral Act, 2010, (as amended) not under the provisions of Section 251 of the 1999 Constitution, (as amended). In fact, INEC may be a nominal party or be liable to an ancillary claim in a pre-election or post-election jurisdiction of the Federal High Court.” See also Jev v Iyortyom (2014) 4 NWLR (pt1428) 575 at 611, Gbileve v Addingi (2014) 16 NWLR (pt 1433) 394 at 418 – 419. PER JOHN INYANG OKORO,J.S.C
JUSTICES
WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
JOHN INYANG OKORO Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria
Between
OLADIMEJI LATEEF AJIJOLA
-SC.271/2018
-SC.272/2018 Appellant(s)
AND
- HON. FATIMA RASAKI
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION
-SC.271/2018AND1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. PEOPLES DEMOCRATIC PARTY
3. HON. FATIMA RASAKI
-SC.272/2018 Respondent(s)
WALTER SAMUEL NKANU ONNOGHEN, C.J.N. (Delivering the Leading Judgment): These appeals are against the judgment of the Court of Appeal, Ado Ekiti Division, delivered on the 6th day of December, 2017 between the common appellant and the respondents.
The brief facts of the case is that on 7th day of December, 2014 the 2nd respondent, Peoples’ Democratic Party, conducted primary election for Ekiti Central Senatorial District. The contestants in the election were the 1st respondent, the appellant and two others.
It is the case of appellant that at the conclusion of the election, he was publicly announced as the winner of the election haven polled 108 votes as against the 1st respondent’s 80 votes: that the 3rd respondent (INEC) monitored the said election and confirmed the above result. However, it was the name of the 1st respondent that was forwarded to the 3rd respondent. He contended that 3rd respondent who, despite having kept records of who polled the highest number of votes at the primary election, accepted and listed the name of the 1st respondent on the 13th January, 2015 as the candidate of the 2nd respondent,
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(PDP) for the Ekiti Central Senatorial District general election. Consequently, appellant instituted suit No. FHC/1087/2014: Oladimeji Ajijola vs. PDP & 2 ORS challenging the nomination of the 1st respondent. Upon the preliminary objection filed by the 1st respondent, the trial Court declined jurisdiction and struck out the said suit on the ground that there was no principal relief against the 3rd respondent (INEC).
Appellant thereafter instituted another action suit NO.FHC/AD/CS/16/2015 on the 26th March, 2015 against the respondents.
The 2nd respondent filed a counter affidavit together with a written address while the 1st respondent once again raised a preliminary objection challenging the trial Court’s jurisdiction to hear the suit on the grounds that appellant’s claim was statute barred by virtue of Section 2(a) of the Public Officers Protection Act and that the earlier determined suit No. FHC/AB/CS/1087/2014 constitutes a bar for the appellant to re-litigate the matter (that is he raised the plea of res-judicata)
After due consideration of all the processes filed, the learned trial judge declined jurisdiction and transferred the suit to the High Court of Ekiti State.
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Being dissatisfied with the judgment of the trial Court, the 1st and 2nd respondents filed appeal at the Court of Appeal vide notice of appeal dated 10th August, 2016, consisting of four grounds of appeal, while appellant filed a cross appeal.
On the 6th day of December, 2017, the Court below allowed the appeal of appellants, and set aside the judgment of the trial Court delivered on 6th August, 2015 and the consequential order of transfer of the suit to the High Court of Ekiti State.
Being dissatisfied with the judgment of the Court of Appeal delivered on 6/12/2017, appellant filed a Notice of Appeal on 1/3/2018.
Appellant brief of argument was deemed filed and served on the 31st day of October, 2018 while his reply brief was filed on 29/10/2018 but also deemed filed and served on 31/10/2018.
1st and 2nd respondents’ brief of argument was deemed filed and served also on the 31/10/2018, as well as the 3rd respondent’s brief.
Two issues were formulated and argued in the appellant brief. They are: –
“ISSUE NO. 1
Whether time was suspended for the purpose of
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calculating the limitation period during the pendency of suit No. FHC/CS/ABJ/1087/14 (between 23/12/14 and 25/3/15) to therefore bring the suit filed at the trial Court on 26/3/15 within 3 months from when the cause of action was held to have accrued (on 7/12/14) and therefore within the statutory period within which an action could be commenced against INEC (Ground 1 of the Notice and Ground of Appeal.)
ISSUE NO. 2
Whether this is not an appropriate circumstance for the Supreme Court to invoke the provision of Section 22 of the Supreme Court Act in view of the failure of the Court of Appeal to invoke the powers conferred on it by Section 15 of the Court of Appeal Act. (Ground 206 and of the Notice & Ground of Appeal).”
On the other hand, the 1st and 2nd respondents set out 2 issues for argument by simply adopting the issues of the appellant.
As a follow-up, the 3rd respondent, set out one (1) issue for argument as follows: –
“Were the noble Justices of the Court of Appeal wrong in dismissing the action of the appellant”
The 3rd -respondent’s lone issue is similar to the appellants. I therefore adopt appellant’s issues and shall so treat the appeal thereupon.
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ISSUE NO.1
“Whether time was suspended for the purpose of calculating the limitation period during pendency of suit No. FHC/CS/ABJ/1087/14 (between 23/12/14 and 25/3/15) to therefore bring the suit filed at the trial Court on 26/3/15 within 3 months from when the cause of action was held to have accrued (on 7/12/14) and therefore within the statutory period within which an action could be commenced against INEC (Ground 1)”
Upon raising this issue, the learned counsel for appellant, M.J. Onigbanjo, SAN urged the Court to come to the conclusion that the matter filed by appellant on 20th March, 2015 by virtue of the argument and authorities cited by him, was not statute barred and to reverse the contrary finding of the Court of Appeal in this regard.
Learned counsel contended that the Court of Appeal in its judgment held that the cause of action arose on 7th December, 2014 when it held as follows:
“…I have situated the two dates: 7th December,2014, when the cassus bell arose, and the 26th March, 2015 when the suit was instituted. By calendar computation, between 7th December; 2014 and 26th March. 2015 a
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period of about three months and nineteen days.”
that it was based on the above finding that the Court of Appeal came to the conclusion that the action filed by appellant at the trial Court on 26th March, 2015 was statute barred, relying on a host of authorities. The Learned senior counsel contended that even though he extensively drew the attention of the Court below to decided cases such as Sifax Nig Ltd vs. Migfo Nig Ltd (2015) LPELR 24655 (CA) and Alh. Haruna (Trading as cash stores) vs. Hermann Ebert (1966- 69) NNLR.75 in which the Courts held that in situations such as the one at hand, the action even though mathematically filed outside the imitation period are not adjudge statute barred, the Court of Appeal completely ignored these decisions, contrary to the doctrine of stare decisis.
The learned silk further submitted that appellant’s was not statute barred because the cause of action arose on the 7th December, 2014 and that their first suit was filed on the 23rd December, 2014, though that suit was struck out on the 25th March, 2015, he subsequently filed another suit on the 26th March, 2015, a day after; that going by the decision in the
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Sifax case, time is frozen during the pendency of the first case which was struck out on 25th March, 2015. However, learned counsel to 1 & 2 respondents submitted that contrary to the argument of appellant’s counsel, when the initial suit of the appellant filed on the 23rd December, 2014 was struck out on 25th March, 2015, appellant, on the 26th March, 2015, filed a fresh case in the same Federal High Court.
The 1st & 2nd respondents’ counsel further submitted that appellant did not RELIST the struck out case of 25th March, 2015 but rather filed a fresh case. The 1st & 2nd respondents’ counsel referred this Court to a plethora of decided cases in support of his argument and finally urged the Court to resolve this issue against appellant and in favour of the 1st and 2nd respondents.
As stated earlier in this judgment the 3rd respondent’s counsel raised a sole issue to wit:
“Were the noble Justices of the Court of Appeal wrong in dismissing the action of the appellant”
and submitted that the case of Sifax relied so much upon by counsel for appellant in support of his case is quite distinguishable from the facts in this case. Finally, counsel
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urged the Court to uphold the judgment of the Court below and dismiss the appeal.
I have carefully examined the issues formulated by each counsel for the determination of this appeal. I therefore proceed to consider issues No. 1.
I am of the opinion that this issue, if well considered will put the appeals to rest. Now, the pertinent question is: what is the consequence of a case that is struck out by a Court This question was answered by this Court in the case of Panalpina World Transport Nigeria Ltd vs. J.B. Oladeen International & Ors (2010)19 NWLR (pt.1226) 1 @ 20 per ADEKEYE, JSC thus:
‘when a matter is struck out, it is still alive and kept in the Court’s general cause list and that – “when an order is made in respect of an application not heard on the merit, it amounts to striking out simplicter. Even where an Order of dismissal is made following a hearing which is not based on the merit, such Order is still considered in law a mere striking out. When a matter is struck out in the circumstances, there is liberty to relist. The simple explanation is that while the matter is disconnected from that date, it is still alive and kept
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in the Court’s general cause list and can be brought back to the hearing cause list… In such a case; the Plaintiff still has another opportunity to reopen the action after rectifying the deficiency that resulted in the striking out of the action. This is applicable even where the Court has not included in the Order of striking out that the Plaintiff has an option to relist. The matter struck out has not left the cause list – as it is still a pending case or pending cause. The same procedure applies even when a matter has been decided many years ago. Alor vs. Ngene (2007) ALL FWLR (pt. .362) pp1836; (2007) 17 NWLR (pt.1062)163: Waterline Nigeria Limited vs. Fawe Services Limited (2003)FWLR (pt.163) p.88″. See also the Supreme Court case of Abey vs. Alex (1999)14 NWLR (pt. 637)148 at 162 in my modest view, it follows that the revival of the action after it had been struck out, so the stoppage of time during the pendency of the action that was struck out would count in favour of the renewed action at the Court with requisite jurisdiciton of the Court below. The Writ was taken out on 18-07-12 vide page 1 of the record of appeal (the record). While the action had been
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initiated in 2006, in the same year the cause of action crystalised ran its full cause of litigation from the Federal High Court to the Court of Appeal and finally at the Supreme Court where it was struck out on appeal for want of jurisdiction of the Federal High Court on 08-06-12 as reported (2013) 3 NWLR (pt. 1333) 555 vide page 13 of the Appellant’s Brief of Argument where the law report was referred to. Between 18-7-12 when the action was filed at the Court below and 08-09-12 when the action was struck out at the Supreme Court is less than two months showing the Respondent did not tarry or delay in filing the action at the Court below after they discovered from the Judgment of the Supreme Court that only the State High Court has the jurisdiction to entertain the action.” (Underlining and italics supplied for Emphasis).
From the above highlights, it is clear that a suit struck out remains pending in the general cause list such that same can be reopened for further proceedings to be taken therein when and only when, such suit is relisted by the Plaintiff.
The next question that needs an answer is: Is Suit No. FHC/AD/CS/16/2015 a Relisted suit
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The suit under consideration was filed on the 26th day of March, 2015, immediately suit No. FHC/15/ABJ/1087/14 filed on 23/12/14 was struck out.
It is the contention of the appellant’s counsel that suit No. FHC/AD/CS116/2015 filed on 26/03/2015 and which culminated in the present appeal is not statute barred by virtue of Section 2 (a) of Public Officers (Protection) Act regard being had to the cause of action which accrued on 07/12/2014; he submitted that the 3 months limitation period enacted by that Act was suspended and/or frozen when he filed the earlier suit on 23/12/14 and when the said suit was struck out by the trial Court on 25/03/2015.
It is settled law that a case struck out is still pending and same can be reopened for further proceedings to be taken therein when and only when such suit is relisted by the Plaintiff and not when, as in the suit leading to the instance appeal, the Plaintiff goes back, prepares a completely new suit and files same afresh in the same Court. Appellant never relisted the suit that was struck out on 25th day of March, 2015 but filed a fresh case in the suit No. FHC/AD/C5/1612015 on the 26th March, 2015.
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I am of the view that suit No. FHC/C5/ABJ/1087/14 filed on 23/12/2014 and struck out on the 25/3/2015 from the cause list by the trial Court is still pending in Court.
Furthermore, this Court in Sifax Nig. Ltd. V. Migfo (Nig.) Ltd. (supra) held that “a suit struck out is still alive and kept in the Court’s general cause list and can be brought back to the hearing cause list and the Plaintiff still has another opportunity to reopen the action only after rectifying the deficiency that resulted in the striking out of the action.
The trial Court having found that Federal High Court is the wrong Court to institute appellant’s action as constituted, rather than rectifying the deficiency that led to the striking out of the suit by re-filing same in the Court with the requisite Jurisdiction to entertain his claims; which is Ekiti State High Court; appellant merely rearranged his reliefs which remain the same as in the earlier suit and, without curing the defects in the said earlier suit, filed the latter suit No. FHC/1201CS/16/2015 in the same wrong Court Federal High Court on 26/03/2015.
I have earlier observed that appellant’s case in the suit No.
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FHC/CS/ABJ/1087/14 filed on 23/12/2014 but struck out on 25/03/2015 is still pending in the trial Court’s cause list, in which case appellant still has an option of either to relist the case or appeal against the decision of the trial Court.
Premised on the foregoing, I affirm the decision of the Court below that the suit of the appellant was statute barred. Accordingly, issue No.1 is answered in the negative and in favour of the respondents.
ISSUE NO. 2
“Whether this is not an appropriate circumstance for the Supreme Court to invoke the provisions of Section 22 of the Supreme Court Act in view of the failure of the Court of Appeal to invoke the powers conferred on it by Section 15 of the Court of Appeal Act
In view of my opinion in issue No. 1 above, I will not bother myself with issue No. 2 as formulated by the learned counsel for appellant; it is clear that this appeal is an exercise in futility and is consequently doomed to fail as appellant did not appeal against the finding in suit No. FHC/CS/ABJ/1087/14 neither did he relist same, as that case is still pending in the Federal High Court’s cause list.
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In the case of Iyoho V. Effiong (2007) 11 NWLR (Pt. 1044) 31 at 54 -.55 paragraphs H – D this Court per Onnoghen J.S.C., as he then was, stated thus:
“…However, it was improper for the respondent in hand to commence certiorari proceedings in suit No. C/MSC/68/98 in the face of the pending application in the Rent Control Court. I hold the view that suit No. C/MSC/68/98 was an abuse of the process of the Court However, going through the grounds of appeal at pages 238 -242 of the record, there is no ground attacking the decision of the lower Court on the issue of abuse of Court process neither has any issue been formulated before this Court relating thereto. It is settled law that a decision of the Court not appealed against is deemed accepted by the party against whom the decision was entered and therefore binding. I hold the view that granted, without conceding, the appellant’s issue for consideration in this appeal succeeds, the legal effect of that decision would not be sufficient to set aside the decision of the lower Court, in view of the fact that that Court had held in addition that the suit giving rise to the appeal before it was instituted is abuse of process and that decision
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remained subsisting and binding.
Therefore, without even bothering oneself with the issue formulated by learned Counsel for the appellant, it is clear that this appeal is an exercise in futility and is consequently doomed to fail.
In conclusion, I am of the considered view that this appeal fails. Accordingly, the Judgment of the Court below delivered on 6th, December, 2017 in appeal No. CA/EK/51/2015 is hereby affirmed. I make no order as to costs.
SC. 272/2016
This is a sister appeal to SC.271/2018 just decided supra as they arose from the same judgment on same facts between the same parties. The arguments of counsel are the same. The only noticeable difference lies in the arrangement of the parties particularly the respondents.
In the circumstance, this appeal No. SC. 272/2018 has been overtaken by the decision just rendered and is consequently dismissed for lack of merit.
The judgment of the lower Court in appeal No. CA/EK/51/2015 delivered on 6th December, 2017 is hereby affirmed. I also make no order as to costs.
Appeal dismissed.
MUSA DATTIJO MUHAMMAD, J.S.C.: Having read
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in draft the lead judgment of my learned brother WALTER SAMUEL NKANU ONNOGHEN CJN, just delivered, I entirely agree with the reasoning and conclusion therein that the two appeals which arose from the same judgment, on the same facts and between the same parties lack merit. I also dismiss the two appeals.
By way of emphasis I state why the two appeals must fail. Appellant had commenced a fresh action in suit No.FHC/AD/CS/16/2015 in respect of his cause on the 26/3/2015 after his earlier bid in suit No. FHC/CS/ABJ/1087/14 had been struck out by the trial Court. At the Court below, the Ekiti Division of the Court of Appeal, appellant’s appeal was allowed and the order of transfer to the Ekiti State High Court by the trial Court, on declining jurisdiction in suit No.FHC/CS/ABJ/1087/14, was set-aside.
Still aggrieved, the appellant has appealed to this Court with his first issue on which basis the appeal will be determined thus: –
“Whether time was suspended for the purpose of calculating the limitation period during the pendency of Suit FHC/CS/ABJ/1087/l4 (between 23/12/14 and 25/3/15 to therefore bring the suit filed at the trial Court
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on 26/3/15 within 3 months from when the cause of was held to have accrued (on 7/12/14) and therefore within the statutory period within which an action could be commenced against INEC (Ground 1 of the Notice and Ground of Appeal)”
Appellant’s argument is that his subsequent suit No. FHC/AD/CS/16/2015 against the respondents is not a fresh action since his earlier suit No. FHC/AB/CS/1087/2014 was still alive when the subsequent action was filed. It is argued that between 7th December 2014 when, as rightly held by the trial Court, the cause of action arose and 26th March 2015 when the subsequent suit was instituted, his action had not become, as wrongly held by the lower Court, statute barred. Relying particularly on Sifax Nig Ltd V. Migfo Nig Ltd (2015) LPELR 24655 (CA), learned appellant’s counsel urges that the issue be resolved in their favour and the appeal allowed.
The respondents, rightly in my view, contends otherwise.
A common thread that runs through the decisions of this Court as to the effect of striking out a cause is that it connotes suspension of the cause with the plaintiff being at liberty to relist or revive the cause on
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remedying the defect on which basis the cause was struck put. Because the matter was not determined on the merit, it remains on the cause list. See Chief Ozo Nwankwo Alor & anor V. Christophe Ngene & Ors (2007) LPELR-431 (SC), Abey V. Alex (1999)14 NWLR (Pt 637)148 at 162 and Panalpina World Transport Nigeria Ltd V. Oladeen International & ors (2010) 19 NWLR (Pt 1226) 1 at 20.
It is evident from the record of this appeal that instead of the appellant to revive his cause of action that had accrued on 7th December 2014 and had remained alive on the cause list notwithstanding its being struck out, he chose to commence a fresh action on the 26th March,2015. The lower Court is unquestionably correct to have found that the action by virtue of Section 2 (a) of the Public Officers (Protection) Act had become statute barred. It was commenced outside the three months period within which the law allows it to be instituted.
It is for the foregoing and the fuller reasons in the lead judgment that I also find no merit in the two appeals and dismiss same.
I abide by the consequential orders made in the lead judgment.
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JOHN INYANG OKORO, J.S.C.: My Lord, Walter Samuel Nkanu Onnoghen, CJN, made available to me before now the judgment just delivered and I entirely agree that these appeals have no merit and deserve to be dismissed. The appeals seek to question the decision of the Court below which allowed the appeal of the Respondents and set aside the judgment of the trial Court delivered on 6th August, 2015. I shall proffer a few comments in addition to the judgment which has covered all issues canvassed by both parties.
With regard to the issue formulated by the Appellant -whether time was suspended for the purpose of calculating the limitation period during the pendency of suit No. FHC/CS/ABJ/1087/14 (between 23/12/14 and 25/3/15) to therefore bring the suit filed at the trial Court on 26/3/15 within 3 months from when the cause of action was held to have accrued (on 7/12/14) and therefore within the statutory period with which an action could be commenced against INEC, My Lord has extensively discussed the issue that a suit struck out, remains pending on the general Cause list and can be relisted at any time, by the plaintiff, for further proceeding.
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I agree with His Lordship and shall not repeat the exercise. However, I wish to add that we are now at this point because of the error of the trial Judge in striking out suit No. FHC/CS/ABI/1087/14. The controversy regarding the concurrent jurisdiction of the Federal High Court, State High Court and High Court of the Federal Capital Territory, in entertaining pre-election matters had long been settled by this Court in the case of Salim v CPC (2013) 6 NWLR (pt 1351)501, where this Court considered the import of the provision of Section 87(9) of the Electoral Act 2010 (as amended) and held that the power to adjudicate in a pre-election matter is exercisable by either the Federal High Court or State High Court or High Court of the Federal Capital Territory.
Section 87 (9) of the Electoral Act 2010 (as amended) provides as follows:-
“Notwithstanding the provision of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with, in the selection or nomination of a candidate of a political party for election may apply to the Federal High Court
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or High Court of a State or Federal Capital Territory for redress.”
The above provision of the law is crystal clear. It is an aberration to say that for the Federal High Court to entertain a pre-election matter, the main relief(s) must fall within the exclusive jurisdiction of the Court or that the main relief(s) must be shown to be against an agency of the Federal Government, in this instance, the 3rd Respondent. In the case of Lokpobiri v Ogola (2016) 3 NWLR (pt 1499) 238, this Court per Onnoghen, JSC (as he then was) held at page 363 paragraph H as follows: –
“…It is also not in doubt that the intention of the National Assembly in enacting the said Act is clearly to confer concurrent jurisdiction on the Federal High Court and State and Federal Capital Territory High Courts in pre-election matters so as to enlarge the range of choice of Courts available to an aggrieved party to ventilate his grievances.”
My Lord went on to hold at page 365, D –E as follows:-
“It is therefore my considered opinion that when the Federal High Court’s pre-election jurisdiction is invoked, the parties claim(s) and relief(s) must be in
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conformity with the provisions of the Electoral Act, 2010, (as amended) not under the provisions of Section 251 of the 1999 Constitution, (as amended). In fact, INEC may be a nominal party or be liable to an ancillary claim in a pre-election or post-election jurisdiction of the Federal High Court.”
See also Jev v Iyortyom (2014) 4 NWLR (pt1428) 575 at 611, Gbileve v Addingi (2014) 16 NWLR (pt 1433) 394 at 418 – 419. From the foregoing, the learned trial Judge in suit No. FHC/CS/ABJ/1087/14 was in grave error to have struck out the suit citing lack of jurisdiction, without which this appeal could have taken a different narrative, that is, if the matter would have been here at all. That being said, the Appellant neither appealed that decision nor applied to have it relisted, but instead commenced an entirely different action outside the time allowed by Section 2 of the Public Officers Protection Act. I hold therefore that suit No.FHC/AD/CS/16/2015, filed 3 months and 19 days after the cause of action had accrued was caught up by the statute of limitation. The Court below was right in allowing the appeal of the Respondents and setting aside the
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judgment of the trial Court in suit No. FHC/AD/16/2015 delivered on 6/8/2015. I hold that this appeal has no merit and is hereby dismissed by me. The judgment of the Court below is hereby affirmed. No order as to cost.
SC. 272/2018
This is a sister appeal to SC.271/2018 decided before now. In view of the judgment of this Court in SC.271/2018 this appeal has become academic with no live issues to be determined by this Court. I shall therefore not dwell on it. I have no hesitation in dismissing this appeal for lack of merit. I make no order as to cost.
Appeal Dismissed.
AMIRU SANUSI, J.S.C.: On reading thoroughly, the erudite Judgment delivered by my learned brother, the Hon. Chief Justice of Nigeria WSN Onnoghen CJN. His lordship has ably, adequately and painstakingly addressed all the salient issues canvassed by learned counsel to the parties before arriving at his conclusion that this appeal is unmeritorious and should therefore fail. That conclusion is also agreeable to me. l adopt the reasoning therein that the appeal lacks merit and should be dismissed. I too, therefore hereby dismiss the appeal. I decline to award any costs so each party should bear its own costs.
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SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Onnoghen, CJN, just delivered. I agree entirely with the reasoning and conclusion reached. The appeal is without merit and it is hereby dismissed.
SC. 272/2018
I also agree with my learned brother Onnoghen, CJN, that the sister appeal has been overtaken by the decision in SC.271/2018 just delivered and is consequently dismissed for lack of merit.
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Appearances:
M.J. Onigbanjo, SAN with him, Messrs Moyosola Oso, Samuel Oguntuyi and Charles Adenola For Appellant(s)
M.O. Folorunsho, Esq. with him, S.S. Adukke, Esq. for 1st and 3rd Respondent.
Adeola Adedipe, Esq. with him, Messrs C.L. Nazekvve, Peter Nwatu, Kayode Olojo and David Ogundipe for 1st & 2nd respondent.
M. Abdul-Rasheed, Esq. with him, Messrs O. Thanni, P. Nwatu and B.S. Kpenkpen for 2nd & 3rd respondents.
For Respondent(s)
Appearances
M.J. Onigbanjo, SAN with him, Messrs Moyosola Oso, Samuel Oguntuyi and Charles Adenola For Appellant
AND
M.O. Folorunsho, Esq. with him, S.S. Adukke, Esq. for 1st and 3rd Respondent.
Adeola Adedipe, Esq. with him, Messrs C.L. Nazekvve, Peter Nwatu, Kayode Olojo and David Ogundipe for 1st & 2nd respondent.
M. Abdul-Rasheed, Esq. with him, Messrs O. Thanni, P. Nwatu and B.S. Kpenkpen for 2nd & 3rd respondents. For Respondent
