PEOPLES DEMOCRATIC PARTY v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2018) LCN/4710(SC)
In The Supreme Court of Nigeria
On Friday, the 13th day of April, 2018
SC.766/2017
RATIO
WHAT A CONDITIONAL APPEARANCE ENTAILS
A conditional appearance is an appearance under protest and usually means an appearance to object to the Court’s jurisdiction. PER OLABODE RHODES-VIVOUR, J.S.C.
POSITION OF THE LAW ON THE DUTY OF THE COURT WHEN A CASE IS CALLED AND THE DEFENDANT IS ABSENT
When a case is called and the defendant is absent, it is the duty of the Court to find out if the defendant was served. If he was not served the case is adjourned to another date for service to be properly effected on the defendant. This is premised on the long settled position of the law that failure to give notice of proceedings to an opposing party in a case where service of process is required is a fundamental omission (except where proceedings are exparte) which renders the proceedings void because the Court would have no jurisdiction to entertain such a suit. See Haruna v. Ladeinde (1987) 4 NWLR (Pt. 67) p. 941, Obimonure v Erinosho (1966) 1 ANLR p. 250. PER OLABODE RHODES-VIVOUR, J.S.C.
WAYS BY WHICH A DEFENDANT CAN QUESTION THE ORIGINATING SUMMONS IN A SUIT
When an originating process is served on the defendant and he has an objection to it, he is expected to either- (a) enter an appearance on protest, or (b) enter a conditional appearance, and (c) file a Notice Motion asking the Court to set aside the purported writ and service of same on the ground of originating process and service being invalid. If the defendant does not follow the above procedure he cannot question the originating process or service on appeal. PER OLABODE RHODES-VIVOUR, J.S.C.
INTERPRETATION OF SECTION 97 OF THE SHERIFF AND CIVIL PROCESS ACT AS REGARDS THE EFFECT OF THE FAILURE TO PROPERLY ENDORSE THE REQUIRED NOTICE ON AN ORIGINATING PROCESS FOR SERVICE OUTSIDE A STATE WHERE IT WAS ISSUED
Section 97 of the Sheriff and Civil Process Act states that: Every writ of summons for service under this part out of the State or the Capital Territory which it was issued shall in addition to any other endorsement or notice required by the law of such State or the Capital Territory have endorsed thereon a notice to the following effect: This summons (or as the case may be) is to be served out of the State (as the case may be) and in the . State (as the case may be). Where the words used in a statute are clear and unambiguous they must be given their ordinary meaning. See Mobil v FBIR (1977) 3SC p53, Toriola v. Williams (1982) 7 SC P. 27. It is so obvious after reading, Section 97 of the Sheriff and Civil Process Act that it is couched in mandatory terms. It is abundantly clear that any service of a writ without the proper endorsement as stipulated by Section 97 supra, is not a mere irregularity but is a fundamental defect that renders the writ incompetent. There can be no doubt whatsoever that by virtue of Section 97 of the Sheriffs and Civil Process Act, every writ of summons (or originating process) for service out of the State in which it was issued must, in addition to any endorsement of notice required have endorsed on it, a notice indicating, that the summons is to be served out of the State and in which State it is to be settled. Once again failure to endorse the required notice on an originating process for service outside a State where it was issued is not a mere irregularity but a fundamental defect that renders the originating process incompetent. A Court would be deprived of jurisdiction to hear the case if satisfied that there is non-compliance with Section 97 of the Sheriffs and Civil Process Act. See Odua Investment Co. Ltd v. Talabi (1997) 10 NWLR (pt. 523) p.1, Nwabueze & Anor v Justice Obi-Okoye (1988) 4 NWLR (Pt. 91) p. 664. Skenconsult (Nig) Ltd v. Ukey (1981) 12 NSCC p.1 The Courts have no discretion under Section 97 of the Sheriffs and Civil Process Act. Once the claimant fails to comply with the mandatory provision in Section 97 supra the Court would no longer have jurisdiction to hear the suit. It is fundamental that the claimant obeys and complies fully with the provision. No valid appearance can be entered by the defendant to an originating process that does not have the mandatory endorsement, except to enter conditional appearance. PER OLABODE RHODES-VIVOUR, J.S.C.
HOW TO PROPERLY CITE A CASE AS AN AUTHORITY
I must remind counsel that a case is authority for what it decides. Relying on a case without relating it to the facts that induced it will amount to citing the case out of the proper con. The whole purpose of citing, a case is for the law on it to be known. PER OLABODE RHODES-VIVOUR, J.S.C.
JUSTICES
OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
AMINA ADAMU AUGIE Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria
Between
PEOPLES DEMOCRATIC PARTY Appellant(s)
AND
- INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. REUBEN IZEZE
3. MR. FESTUS UTUAMA Respondent(s)
OLABODE RHODES-VIVOUR, J.S.C. (Delivering the Leading Judgment): The 2nd and 3rd respondents are members of the Peoples Democratic Party (PDP). Both of them contested the party primaries to enable the party choose its candidate for the Ughelli South Constituency in the Delta State House of Assembly, for the General Elections which was held in April 2015. The 3rd respondent claimed that he won the primaries, but his party (the appellant) substituted him with the 2nd respondent.
That is to say according to the 3rd respondent he was replaced by the 2nd respondent. The 2nd respondent’s name was sent to the 1st respondent as the appellant’s candidate for the General Elections, representing Ughelli South Constituency, in the Delta State House of Assembly. The 2nd respondent contested the General Elections and won. He has been, and is still in the Delta State House of Assembly as a member of the Delta State House of Assembly representing Ughelli South Constituency.
Dissatisfied with the appellant’s decision to field the 2nd respondent as its candidate in the General Elections,
1
the 3rd respondent as plaintiff filed an originating summons against all the defendants. The defendants were INEC, PDP and R. Izeze. For purposes of clarity, I shall now set out the parties in the Courts’ below. In the trial Court, the 3rd respondent was the plaintiff, while the 1st respondent was the 1st defendant. The appellant was the 2nd defendant, and the 2nd respondent was the 3rd defendant.
The plaintiff/3rd respondent lost. He was the appellant in the Court of Appeal. The respondents were the same as the defendants, in the trial Court. He won in the Court of Appeal.
This appeal is by the Political party the Peoples Democratic Party (PDP).
In the originating summons the plaintiff asked the following, questions:
1. Whether the National Working Committee of the Peoples Democratic Party (PDP) is empowered to conduct primaries and present candidates to Delta State House of Assembly elections scheduled for April, 2015 on behalf of the party.
2. Whether the plaintiff having won and was issued the Certificate of Results as the winner of the Peoples Democratic Party (PDP) House of Assembly, Ughelli South Constituency primary election conducted by the National working Committee of
2
the 2nd defendant, can be surreptitiously substituted with the 3rd defendant, by the 1st and 2nd defendants, as the candidate of the Peoples Democratic Party (PDP) for the Delta State House of Assembly Ughelli South Constituency elections in total disregard of the report of the 2nd defendants Electoral Panel and Electoral Appeal Committee for the conduct of the Delta State House of Assembly primaries held on 29 November, 2014, the 1999 Constitution (as amended) and the Electoral Act 2010 (as amended).
3. Whether the substitution of the plaintiff’s name, FESTUS UTUAMA with the name of the 3rd defendant (MR REUBEN IZEZE) as the candidate of the Peoples Democratic Party (PDP) after the plaintiff won the primary election of the Peoples Democratic Party (PDP) to the Delta State House of Assembly Ughelli South Constituency, on 29 November 2014 is not in violation of the Peoples Democratic Party (PDP) Constitution and the plaintiff’s right under the 1999 Constitution (as amended) and the Electoral Act 2010 (as amended).
And sought the following reliefs:
1. A declaration that the plaintiff having won and received the certificate of return as the
3
winner of the Ughelli South Constituency, Delta State House of Assembly primaries conducted by the National Working Committee of the 2nd defendant, is the rightful and lawful candidate of the Peoples Democratic Party (PDP) for the Delta State House of Assembly election slated for 11 April, 2015.
2. A declaration that the 1st and 2nd defendants surreptitious substitution of the plaintiffs name with the 3rd defendant’s name as the candidate of the Peoples Democratic Party (PDP) for the Delta State House of Assembly Ughelli South Constituency election slated for 11 August, 2015 in total disregard of the result of the primaries, report of the Peoples Democratic Party (PDP) Electoral Appeal panel is contrary to the Constitution of the Peoples Democratic Party (PDP) Constitution (as amended) and therefore unlawful, illegal and of no effect whatsoever.
3. A declaration that any step taken by the defendants in furtherance of the unlawful substitution of the Plaintiff with the 3rd defendant in disregard of the result of the primaries conducted by the National Working Committee of the Peoples Democratic Party (PDP), report of the Peoples Democratic
4
Party (PDP) Electoral Panel, Electoral Appeal Panel, the PDP Constitution and Electoral Act 2010 (as amended) is a nullity.
4. An Order reinstating the name of the plaintiff as the lawful and rightful candidate of the Peoples Democratic Party (PDP) for the Delta State House of Assembly Ughelli South Constituency election slated for 11 April 2015.
5. An order nullifying the election of the 3rd defendant into the Delta State House of Assembly, Ughelli South Constituency held on 11 April, 2015.
6. An order nullifying and or setting aside the certificate of return issued by the 1st defendant to the 3rd defendant on the basis of the election held on the 11 April 2015 on the ground that the said election amount to a nullity.
7. An order directing the 1st defendant to issue a certificate of return to the plaintiff as the duly elected member of the Delta State house of Assembly representing Ughelli South Constituency.
8. An order directing the 3rd defendant to refund all monies, salaries, allowances and or benefits collected and received by him as a member representing Ughelli South Constituency in the Delta State House of Assembly from the
5
date of swearing in until judgment is delivered.
9. General damages against the defendants jointly and severally in the sum of N500,000,000.00 (Five hundred Million Naira).
Affidavit in support of the amended originating summons, counter-affidavit and reply affidavit were filed.
The 2nd and 3rd defendants i.e. the PDP and R Izeze now the appellant and the 2nd respondent filed memorandum of conditional appearance.
A conditional appearance is an appearance under protest and usually means an appearance to object to the Court’s jurisdiction. They subsequently filed similar Notice of Motion on 12 November 2015 and 26 November, 2015 praying the Court for an order striking, out or dismissing, the suit in its entirety.
The grounds for the application are:
(a) The main or principal relief in thus suit relate to the 1st and 2nd defendants who are not agencies of the Federal Government of Nigeria and to the extent this Honourable Court has no jurisdiction to entertain this suit.
(b) The cause of action which is the nomination of the 3rd defendant as the candidate of the 2nd vide a list of candidates submitted to INEC on
6
26/12/2014, had occurred more than three months before the initiation of this suit which was initiated on 9/4/2015, more than three months after the 1st defendant had received the list of nominated candidates.
(c) The suit contains facts which are hotly disputed and which cannot be resolved ordinarily without the recourse of necessity of calling oral evidence. It is therefore not a suit that could or should have been commenced vide originating summons procedure.
(d) The originating summons being the originating process purportedly taken out by counsel named Ama Etuwewe without any seal issued by the NBA affixed on the process is liable to be set aside.
(e) Reliefs 5 and 6 seeking to nullify the House of Assembly election of 11/4/2015 can only be granted by an election petition tribunal set up under Section 285 of the Constitution of Nigeria 1999 (as amended).
(f) The originating summons which was issued out of Delta State for service on the 1st and 2nd defendants in Abuja the Federal Capital Territory does not contain the mandatory endorsement as prescribed by law.
Counsel on both sides filed written addresses, and in a
7
considered judgment delivered on 5 April 2010, the learned trial judge, Obile J of a Federal High Court (Warri Judicial Division) upheld the 2nd and 3rd defendants objection. His lordship had this to say:
” this Court lacks the jurisdiction and competence to entertain and determine this suit because the amended originating summons is invalid, null and void and ought to be struck out and I so hold..
The learned trial judge found the suit to be incompetent and struck it out because the Originating summons was not properly issued for service outside the jurisdiction of the Court and that the action was in breach of Section 2 (a) of the Public Officer Protection Act and so statute barred.
The plaintiff (3rd respondent) lodged an appeal. It has heard by the Court of Appeal (Benin Judicial Division)
The appellant and 3rd respondent filed separate notices of preliminary objection and also cross-appeal. The preliminary objections were dismissed. The Court of Appeal did not consider the cross appeals. It heard the main appeal wherein it considered only an issue. It reads,
“Whether the lower Court was right when it struck out
8
the appellants suit on the ground that it lacked the necessary jurisdiction to entertain the claim as postulated in the amended originating summons dated and filed on 21/5/2015.
In a considered judgment delivered on 12 June 2017, the Court of Appeal set aside judgment of the trial Court when it said:
I accordingly set aside the order of the lower Court striking out the suit of the appellant in Suit No. FHC/WR/CS/53/2015. I hold that the originating process by the appellant was properly issued and served on the 1st and 2nd respondents in compliance with the provision of Order 6 Rules 13-17 of the Federal High Court Civil Procedure Rules, Section 97 of the Sheriff and Civil Process Act . By this therefore, I conclude that the appeal is meritorious and it is hereby allowed.
The judgment of the lower Court in suit No. FHC/WR/CS/53/2015 delivered on 5 April 2016 is hereby set aside.
The suit is hereby remitted to the Hon. Chief Judge of the Federal High Court for reassignment to another judge of the Federal High Court For expeditious determination on merit
This appeal by the Political Party
9
(PDP) is against that judgment. Briefs were filed and exchanged by counsel. The appellant’s brief was filed on 29 September, 2017 by its learned counsel Mr. E.T. Omonemu, while the 3rd respondent’s brief was filed by its learned counsel Mr A Etuwewe on 12 October 2017.
Learned counsel for the 1st respondent, Mr A Umar who did not announce himself as appearing for the 1st respondent informed the Court that he was aware of this appeal, but that he did not file a brief. Learned counsel for the 2nd respondent, Mr. Ehighelua did not file a brief.
Learned counsel for the appellant, Mr. E.T. Omonemu formulated four issues for determination of the appeal. They are:
1. Whether the Court of Appeal was right in holding that the originating summons in this case was properly issued and served in view of the clear provisions of the Sheriff and Civil Process Act.
2. Whether the Court of Appeal was right in holding that the trial Court had jurisdiction to try the matter on the merit without first reversing, quashing and/or setting aside the decision of the trial Court that the action was statute barred.
3. Whether the Court of Appeal has not breached
10
the right of the appellant to fair hearing and occasioned a miscarriage of justice by refusing and/or neglecting to consider and make a pronouncement on all the issues properly canvassed before it.
4. Whether the Court of Appeal was right in ignoring, refusing, neglecting and/or failing to consider or make a pronouncement on the cross appeal of the appellant.
Learned counsel for the 3rd respondent, Mr. A. Etuwere adopted the issues formulated by the appellant.
At the hearing of the appeal on 17 January 2018 learned counsel for the appellant, E.T Ononemu Esq adopted the appellants brief filed on 29 September, 2017 and urged the Court to allow the appeal.
Learned counsel for the 3rd respondent, A.V. Emuvakpor Esq adopted the 3rd respondents brief filed on the 12 October 2017, and urged the Court to dismiss the appeal.
Learned counsel for the 1st and 2nd respondents A.A. Umar, Esq and I.Ehighelua Esq had nothing to urge since no briefs were filed by them.
The first issue formulated by the appellant was the only issue considered by the Court of Appeal.
The issue asks whether the originating summons in this case was
11
properly issued in accordance with Section 97 of the Sheriffs and Civil Process Act. The trial Court declined jurisdiction to hear the 3rd respondents/plaintiffs case because the originating summons for service out of the jurisdiction of the trial Court (i.e. in Abuja) was not properly endorsed in the manner required by Section 97 of the Sheriff and Civil Process Act and the 3rd respondent did not obtain leave to issue and serve the originating process on the appellant and 1st respondent. The Court of Appeal reversed the decision of the trial Court, holding that the originating summons was properly issued and served in accordance with Section 97 of the Sheriffs and Civil Process Act.
I have carefully considered the four issues formulated by the appellant and adopted by the 3rd respondent. I consider the 1st issue to be very fundamental, crucial, and decisive in that if it is found that the originating summons in this suit was not issued in accordance with the provisions of Section 97 of the Sheriff and Civil Process Act, the Court would have no jurisdiction to hear the case and it will become unnecessary to consider any of the other issues.
12
The issue reads,
Whether the Court d Appeal was right in holding that the originating summons in this case was properly issued and served in view of the clear provisions of the Sheriff and Civil Processes Act.
When a case is called and the defendant is absent, it is the duty of the Court to find out if the defendant was served. If he was not served the case is adjourned to another date for service to be properly effected on the defendant.
This is premised on the long settled position of the law that failure to give notice of proceedings to an opposing party in a case where service of process is required is a fundamental omission (except where proceedings are exparte) which renders the proceedings void because the Court would have no jurisdiction to entertain such a suit. See Haruna v. Ladeinde (1987) 4 NWLR (Pt. 67) p. 941, Obimonure v Erinosho (1966) 1 ANLR p. 250.
When an originating process is served on the defendant and he has an objection to it, he is expected to either-
(a) enter an appearance on protest, or
(b) enter a conditional appearance, and
(c) file a Notice Motion asking the Court to set aside the purported writ and service of same on the ground of
13
originating process and service being invalid.
If the defendant does not follow the above procedure he cannot question the originating process or service on appeal.
In this case the appellant and the 1st respondent as 1st and 2nd defendants complied with (a), (b) and (c) above when they filed similar objection to question the originating summons in this suit. They were thus correct in the procedure adopted in the trial Court.
The issue is not whether there was proof of service of the Originating summons on the appellant and 1st respondent whose addresses for service are in Abuja outside the jurisdiction of a Warri Federal High Court, but whether
(a) the originating summons was properly issued.
(b) the mandatory endorsement required by law were placed on the process.
Learned counsel for the appellant observed that the originating summons served outside jurisdiction in Abuja on his client and the 1st respondent were null and void since the process was issued without leave, and the mandatory endorsements required by law were not placed on the said process. Relying, on Auto Import Export v Adebayo (2005) 19 NWLR (Pt. 959) p. 44
14
Owners of M.V. Arabella v N.A.I.C (2008) 1 NWLR (Pt. 1097) p. 182.
He urged the Court to resolve this issue in favour of the appellant, set aside the decision of the Court of Appeal and restore the decision of the trial Court. Learned counsel for the 3rd respondent observed that leave is not required to file an originating summons in the Federal High Court, further observing that the Court of Appeal was right to set aside and overrule the decision of the trial Court.
Learned counsel observed that the originating summons for service outside jurisdiction was properly endorsed for service on the appellant and 1st respondent (i.e 1st and 2nd defendants).
Reliance was placed on Enterprise Bank Ltd v Aroso (2014) 3 NWLR (Pt. 1394) p. 256.
He urged the Court to resolve this issue in favour of the 3rd respondent and affirm the decision of the Court of Appeal and dismiss this appeal.
I shall consider whether there was compliance with Section 97 of the Sheriff and Civil Process Act. If there was non-compliance, that would bring the hearing of this appeal to an end.
Section 97 of the Sheriff and Civil Process Act states that:
15
Every writ of summons for service under this part out of the State or the Capital Territory which it was issued shall in addition to any other endorsement or notice required by the law of such State or the Capital Territory have endorsed thereon a notice to the following effect:
This summons (or as the case may be) is to be served out of the State (as the case may be) and in the . State (as the case may be).
Where the words used in a statute are clear and unambiguous they must be given their ordinary meaning. See Mobil v FBIR (1977) 3SC p53, Toriola v. Williams (1982) 7 SC P. 27.
It is so obvious after reading, Section 97 of the Sheriff and Civil Process Act that it is couched in mandatory terms. It is abundantly clear that any service of a writ without the proper endorsement as stipulated by Section 97 supra, is not a mere irregularity but is a fundamental defect that renders the writ incompetent.
There can be no doubt whatsoever that by virtue of Section 97 of the Sheriffs and Civil Process Act, every writ of summons (or originating process) for service out of the State in which it was issued must, in addition to
16
any endorsement of notice required have endorsed on it, a notice indicating, that the summons is to be served out of the State and in which State it is to be settled. Once again failure to endorse the required notice on an originating process for service outside a State where it was issued is not a mere irregularity but a fundamental defect that renders the originating process incompetent. A Court would be deprived of jurisdiction to hear the case if satisfied that there is non-compliance with Section 97 of the Sheriffs and Civil Process Act. See Odua Investment Co. Ltd v. Talabi (1997) 10 NWLR (pt. 523) p.1, Nwabueze & Anor v Justice Obi-Okoye (1988) 4 NWLR (Pt. 91) p. 664. Skenconsult (Nig) Ltd v. Ukey (1981) 12 NSCC p.1
The Courts have no discretion under Section 97 of the Sheriffs and Civil Process Act. Once the claimant fails to comply with the mandatory provision in Section 97 supra the Court would no longer have jurisdiction to hear the suit. It is fundamental that the claimant obeys and complies fully with the provision. No valid appearance can be entered by the defendant to an originating process that does not have the mandatory
17
endorsement, except to enter conditional appearance.
I have examined the originating summons and the subsequent amendment to it and I am satisfied that there is no endorsement on it for service in Abuja outside Delta State. The originating summons is invalid, worthless and void. There would be no need for me to consider whether leave was obtained, since non-compliance with Section 97 of the Sheriffs and Civil Process Act brings the hearing of this appeal to an end. The Court of Appeal was wrong, while the High Court was right. Once there was non-compliance with the provisions of Section 97 of the Sheriffs and Civil Process Act the trial Court would have no jurisdiction to hear the case.
Before I consider this judgment I must explain Enterprise Bank Ltd Ltd v. Aroso (2014) 3 NWLR (Pt. 1394) p. 256.
It has become necessary for me to do so since learned counsel for the 3rd respondent relied heavily on it as authority for Section 97 of the Sheriffs and Civil Process Act.
Section 97 of the Sheriffs and Civil Process Act was not considered at all in Enterprise Bank Ltd v Aroso Supra.
In the case the issue was whether the Writ of Summons for
18
service out of jurisdiction in Ondo State was done in compliance with Order 5 Rule 1 of the High Court (civil Procedure) Rule of Ekiti State.
I must remind counsel that a case is authority for what it decides. Relying on a case without relating it to the facts that induced it will amount to citing the case out of the proper con. The whole purpose of citing, a case is for the law on it to be known. In view of the findings made by this Court it is no longer necessary to consider the other issues formulated by the appellant and adopted by the 3rd respondent.
This appeal is allowed. The trial Court has no jurisdiction to hear the claims of the 3rd respondent/plaintiff, and this is due to the fact that there was failure to comply with the provisions of Section 97 of the Sheriff and Civil Process Act. The judgment of the trial Court is correct and restored, while the judgment of the Court of Appeal is hereby set aside.
MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Olabode Rhodes-Vivour JSC and in support of the reasoning from which the decision came, I shall make some
19
remarks.
This appeal is against the judgment of the Court of Appeal Benin Division or Court below or lower Court delivered on the 12th day of June, 2017 coram: Ekpe, Adumein and, Oniyangi JJCA which set aside the decision of the trial Court which had struck out the suit for want of competence and being statute barred.
The facts leading to this appeal are well set out in the lead judgment and so no need to repeat them except for when the occasion warrants a reference to any part thereof.
On the 17th day of January 2018 date of hearing, learned counsel for the appellant, E. T. Omonemu Esq. adopted its brief filed on 29/9/17 and in which were raised four issues for determination, viz:
1. Whether the Court of Appeal was right in holding that the originating summons in this case was properly issued and served in view of the clear provisions of the Sheriff and Civil Process Act (Ground 1).
2. Whether the Court of Appeal was right in holding that the trial Court had jurisdiction to try the matter on the merit without first reversing, quashing and/or setting aside the decision of the trial Court that the action was statute barred. (Ground 2)
20
- Whether the Court of Appeal has not breached the right of the appellant to fair hearing and occasioned a miscarriage of justice by refusing and/or neglecting to consider and make a pronouncement on all the issues properly canvassed before it (Ground 2)
4. Whether the Court of Appeal was right in ignoring, refusing, neglecting and/or failing to consider or make a pronouncement on the cross appeal of the appellant (Ground 3)Alhassan A. Umar Esq. learned counsel for the 1st respondent informed the Court, he did not file any brief of argument.
Same was with Ikhide Ehigelua Esq. learned counsel for the 2nd respondent.For the 3rd respondent, Ama Etuwewe Esq of counsel adopted his brief of argument filed on 12/10/2017 and he went along the issues as crafted by the appellant.
Those issues are good enough for me in the consideration of this appeal and I shall use them.ISSUE NO 1
This questions whether the Court of Appeal was right in holding that the originating summons in this case was properly issued and served in view of the clear provisions of the Sheriff and Civil Process Act.Learned counsel for the appellant
21
contended that leave was mandatorily required before service of the writ could be validly served out of jurisdiction in keeping with Section 97 of the Sheriffs and Civil Process Act and Order 6 Rule 12(1), of the Federal High Court (Civil Procedure) Rules. That the absence of that leave means the jurisdiction of the trial Court was not properly invoked. He cited NEPA v Onah (1997) LPELR – (1959) (SC); or (1997) 1 NWLR (Pt. 494) 680; SPDC v Onyiriuka (2016) LPELR – 41309 CA; Drexel Energy and National Resources Ltd & Ors v Trans International Bank Ltd & Ors (2008) 18 NWLR (Pt. 1119) 388 at 437.
That the defendants had raised the issue timeously and having argued it, they cannot be taken to have waived their right. He cited Auto Import Export v Adebayo (2005) 19 NWLR (pt. 959) 44; Haightons (WA) Ltd v Ajao (1975) 1 SC (Reprint) 8; Sani v. Okene L.G. Traditional Council (2008) 12 NWLR (Pt.1102) 691.
In response, Ama Etuwewe Esq. of counsel for 3rd respondent submitted that it is wrong to assume and or hold that obtaining leave to issue a writ or an originating summons as in this case is a condition precedent and a mandatory
22
requirement of the law to the validity of the process. He referred to the same Order 6 Rule 13(1) and 14(1) of the Federal High Court (Civil Procedure) Rules 2008 and Section 97 of the Sherriffs and Civil Processes Act; Owners of the MV Arabella v. Nigeria Agriculture Insurance Corporation (2008) 11 NWLR (Pt. 1097) 182 at 206: Enterprises Bank Ltd v Aroso (2014) 3 NWLR (Pt. 1394) 256 at 294.
That the 3rd respondent having fulfilled all that was necessary on his part and the bailiff of the Court, having filed an affidavit of service stating the necessary details and the fact of the said mandatory endorsement, the trial Court ought to have acted on same particularly there being no counter-affidavit from the respondents to controvert the facts deposed therein by the bailiff of the Court. He cited Ahmed v Ahmed (2013) 15 NWLR (Pt.1377) 274 at 249 – 350.
The trial Court’s judgment was to the effect that the suit was incompetent and proceeded to strike it out on the ground that the originating summons was not properly issued for service outside the jurisdiction of the Court. Also that the action was statute barred for breach of Section 2(a) of the Public Officers Protection Act.
23
On the appeal of the 3rd respondent who was plaintiff at the trial Court, the Court of Appeal set aside that order of the trial Court holding thus:
“I accordingly set aside the order of the lower Court striking out the suit of the appellant in suit FHC/WR/CS/53/2015, I hold that the originating process by the appellant was properly issued and served on the 1st and 2nd respondents in compliance with the provision of Or. 6 Rule 16 – 17 of the Federal High Court Civil Procedure Rule and S. 97 of the Sheriff and Civil Process Act.
Having gone this far and considering the fact that the suit of the appellant was sent packing on the preliminary objection without considering the substantive suit, I do not consider it proper to go further with the consideration of other issues.
On that note also I feel there is no need to consider the cross appeal of the 2nd and 3rd respondents in the circumstances of the fact of this appeal.”
The relevant provisions of the Sheriffs and Civil Process Act Section 97 precisely and Order 6 Rule 12 (1) of the Federal High Court (Civil Procedure) Rules are hereunder recast as follows:
24
“Every writ of summons for service under this part out of the State or the capital Territory which it was issued shall in addition to any other endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the following effect (that is to say)…
This summons (or as the case may be) is to be served out of the …..the State (or as the case may be).”
While Order 6 Rule 12(1) of the Federal High Court (civil Procedure) Rules 2000 states:
“No writ or notice which is to be served out of the jurisdiction shall be issued without the leave of Court.”
The import of leave where so required and is not sought and obtained is that the writ, originating summons or any originating process whereby the leave is a condition process to the validity of the originating process. The situation is well explained by this Court in the case of: NEPA v Onah (1997) LPELR – (1959) (SC); or (1997) 1 NWLR (Pt. 494) 690, where the Supreme Court stated:
“Where the rules of the High Court provides that before a writ of summons to be served out of the jurisdiction, is issued, leave of the High Court
25
must be obtained and if no such leave is obtained prior to taking out of the writ then, the writ is vitiated and would be declared null and void. The decision is binding on all Courts by the doctrine of stare decisis.” per Uwais CJN (as he then was) (P.18 paras E – G.)
That decision was followed recently in a similar case of SPDC v Onyiriuka (2016) LPELR – 41309 (CA), where the Court of Appeal stated thus:
“The respondents deluded themselves into false belief that because the Federal High Court’s Jurisdiction encompasses the whole Federation of Nigeria, it did not need the leave of the Federal High Court of Owerri, to be first sought and obtained before a writ of summons could issue and to obtain permission to serve the defendant/appellant in Port Harcourt. They even have the temerity to contend that failure to obtain leave either for the writ to issue or permission to serve in Port-Harcourt, a place outside the jurisdiction of the Federal High Court, Owerri is a mere irregularity. This argument is misplaced and has no support in law. See once again the holding of this Court per Okoro JCA (now JSC) in the case of Touton SA v G.C.D.Z. SPA
26
& Ors (supra) para 22 D – H to 23 A- C where in it was held:
By Order 6 Rule 12 (1) of the Federal High Court (Civil Procedure) Rules 2000:
“No writ or notice of which is to be served out of the jurisdiction shall be issued without the leave of Court.”
The Court explained further: “Generally a plaintiff desirous of issuing a writ for service outside the jurisdiction of the Court files an ex parte application seeking for leave to issue the said writ and attaches an unsigned copy of the writ to the affidavit in support of the application. Thereafter the plaintiff can issue same subsequent to obtaining the required leave to do so. Anything short of this renders the writ incompetent ab initio, for any writ of summons meant for service outside the jurisdiction of the Court which is issued before or without leave is null and void. See Adegoke Motors Ltd v Adesanya (1989) 3 NWLR (pt. 109) 250. See also Agip (Nig.) v Agip Petrol Intl (2010) 5 NWLR (Pt. 1187) 548; Owners of M. V. Arabella v NAIC (2008) 11 NWLR (Pt. 1097) 182 and Abacha v Fawehinmi (2006) 6 MWLR (Pt.600) 228. The process in this instance is thus: “1. For service
27
on 1st defendant INEC Office, Abuja
2. For Service on 2nd defendant .. Peoples Democratic party National secretariat Wadata plaza, plot 1970 Michael Okpara street Wuse Zone 5, Abuja.
On the face of the record, it is clear that the process is intended for Delta State while the service is to be made in Abuja which is out of the Delta State territory and so the requirement for the leave to serve the process outside Delta State cannot be bypassed. The matter is fundamental that the absence of the leave of the trial Court before signing or sealing of the writ for service out of the jurisdiction of Delta State is a breach which extinguished the life out of the writ. In this, I find support in the case of Drexel Energy and National Resources ltd & Ors v Trans International Bank Ltd & Ors (2008) 18 NWLR (pt.1119) 388 at 437 per Ogbuagu JSC.
The presentation on ground shows that there were motions challenging the competence of the suit long before the 2nd and 3rd defendants filed their counter affidavit to the originating summons. There was a Memorandum of conditional Appearance and so the right was not lost in the challenge to the
28
Courts jurisdiction and this timeously.
SeeAuto Import Export v Adebayo (2005) 19 NWLR Pt.959) 44;
Haightons (WA) Ltd v Ajao (1975) 1 SC (Reprint) 8;
Sani v. Okene L.G Traditional Council (2008) 12 NWLR (Pt.1102) 691.
There is no gainsaying that this issue has to be resolved in favour of the appellant as the Court below erred in setting aside what the trial Court did.
ISSUES 2, 3 & 4
ISSUE 2:
Whether the Court of Appeal was right in holding that the trial Court has jurisdiction to try the matter on the merit without first reversing, quashing and/or setting aside the decision of the trial Court that the action was statute barred.
ISSUE 3:
Whether the Court of Appeal has not breached the right of the appellant to fair hearing and occasioned a miscarriage of justice by refusing and/or neglecting to consider and make a pronouncement on all the issues properly canvassed before it.
ISSUE 4:
Whether the Court of Appeal was right in ignoring, refusing, neglecting and/or failing to consider or make a pronouncement on the cross appeal of the appellant.
Learned counsel for the appellant
29
submitted that the trial Court was correct when it held that the action filed by the plaintiff now respondent violated the clear provisions of the Public Officers Protection Act. That since that decision was not reversed, quashed or set aside by the Court of Appeal, the decision remains valid and subsisting. He cited A.G Anambra State v. A.G. Federation (2005) NWLR (Pt. 931) 572; Federal College of Education, Pankshin v Pusmut (2007) LPELR 8170 (CA); Wilson v Oshin (2000) 9 NWLR (Pt. 673) 442 at 462 463.
That the lower Court having not set aside the trial Court’s decision that the action was statute barred erred in law in remitting the matter back to the Federal High Court for trial on the merit when the Federal High Court by its finding, which is validly so, is bereft of jurisdiction as it amounted to putting something upon nothing. He cited Mcfoy v UAC (1961) 3 ALL ER 1169.
Learned counsel for the appellant contended that the Court below was duty bound to consider and pronounce on all issues properly canvassed before it and failure to do so occasioned a miscarriage of justice. He referred to Brawal Shipping (Nig) Ltd v F. I.
30
Onwadike (2000) 11 NWLR (Pt. 678) 387; Anambra State Government & Anor v. Anambra State House of Assembly & Ors (2012) LPELR – 9463 (CA) etc.
That the only exception to the rule to have considered all issues is that the issues are subsumed into the one considered and pronounced upon. He cited Uzuda & Ors v Ebigah (2009) 8 – 9 NMLR 409 at 422; Samba Petroleum Ltd & Anor v UBA Plc & Ors. (2010) 6 NWLR page 530 at 531 etc.
Learned counsel for the appellant pointed at the fact that the Court below did not consider the cross appeal of the now appellant who was 2nd respondent/cross- appellant in the Court of Appeal. That issues raised in a cross appeal could not have been subsumed in the main appeal as a cross-appeal is a separate action which must be considered and determined on its own. He cited; Olodo & Ors. v Iburuku & Ors (2011) LPELR – 3644 (CA); Akpan v Bob & Ors (Unprinted SC 135/2009) delivered on 21st May, 2010; Oroja v Adeniyi (2017) ALL FWLR (pt. 883) 1433.
That the judgment of the Court below should be set aside.
Responding, learned counsel for the respondent submitted that the Court below fully dealt with whether or not the action of the
31
3rd respondent was statute barred and so the issue was subsumed in the case of the 2nd respondent in the Court below. He cited Husseini v Mohammed (2015) 3 NWLR (Pt. 1445) 100 at 125; Kayili v Yilbuk (2015) 7 NWLR, (Pt.1457) 26 at 77.
That the Supreme Court should pursuant to its powers under Section 22 of the Supreme Court Act and Order 8 Rule 12 (2) of the Supreme Court Rules, pronounce on the said issues and deal with them in this appeal.
Stating further, learned counsel for the respondent submitted that the 3rd respondents action at the trial Court is not statute barred by reason of Section 2(a) of the Public Officers Protection Act as the cause of action accrued on the 27th January, 2015 when the 1st respondent INEC published the names of the candidates omitting and substituting the 3rd respondents name instead as the candidate of the appellant. He cited Hassan v Aliyu (2010) 17 NWLR (pt. 1223) 547 at 621; Nobis -Elendu v INEC (2015) 16 NWLR (Pt. 1485) 197 at 228.
At the Court of first instance the following decision was reached, viz:
To my mind, the narrow issue for determination here is did this cause of action arise
32
on the 26/12/2014 or 27/1/2015 as contended by counsel. From the circumstances of this case, the plaintiff cannot use exhibit FU14, as shield to claim that his cause of action arose on 27/1/2015. As a member of the 2nd defendant, the plaintiff cannot claim ignorance of the fact that the name of the 3rd defendant was not received by the 1st defendant on 26/12/2014. It is my conclusion that the cause of the action in this case arose or cropped up on the 26/12/2014 and not on 27/1/2015 as counsel to the plaintiff would want the Court to believe. Time started running from the 26/12/2014. From the 26/12/2014 to the 9/4/2015 when the plaintiff filed his originating summons is three (3) months, 15 days. From this arithmetical calculation the plaintiff is outside the statutory period of 3 months he had to file his case. He filed this action about 15 days after the expiration of the statutory of the period of 3 months stipulation in Section 2 (a) of the Public Officers Protection Act.
……the point I am struggling to make is that the case of the plaintiff is statute barred and liable to be struck out because he instituted the cause of action outside the period
33
allowed by limitation of law…….
In sum, this case is statute barred and is liable to be struck out and I so hold
Curiously, the angle taken by the trial Court that the action was statute barred was not deliberated upon by the Court below before it reached the conclusion sending the matter back to the High Court for trial on the merit. The guides in this regard are captured in the cases hereunder referred to thus:
A. G. Anambra State v A. G. Federation (2005) NWLR (Pt. 931) 572 where this Court stated:
An Order or a judgment of Court no matter the fundamental vice that afflicts it remains legally binding and valid until set aside by due process of law. per Katsina-Alu JSC (as he then was).
See also Federal College of Education, Pankshin v. Pusmut (2007) LPELR – 8170 (CA) where the Court stated:
“In the present appeal, the issue of the action being statute barred is fundamental and critical to the determination of that case because once it is established that the action being statute barred it would have brought the matter to an end without more.
See Wilson v Oshin (2000) 9 NWLR (Pt. 673) 442 at 462
34
para H. 463.
For a fact the Court below cannot remit the matter back to the Federal High Court for trial on the merit when the decision of that Court declining jurisdiction had not been addressed on appeal. This is because the earlier trial decision remained valid and subsisting and cannot be ignored or overreached and what the Court of Appeal did cannot be sustained. See Mcfoy v UAC (1961) 3 ALL ER 1169.
I cannot but agree with the appellant that the Court of Appeal not being the final Court is duty bound to consider and pronounce on all the issues that were properly canvassed before it and failure to do so amounts to a miscarriage of justice. See Brawal Shipping (Nig) Ltd v. F.I. Onwadike (2000) 11 NWLR (Pt. 678) 387; Emavworhe Etajata & Ors v. Peer Igbini Ologbo & Anor. (2007) ALL FWLR (Pt 386) 584 at 607 – 611.
The exception to the general rule about the Court of Appeal being an intermediate Court can let go other issues is when those issues can be subsumed into the one considered and pronounced upon. In this case at hand, the question that arises is if an issue of an action being statute barred can be easily subsumed into the issue
35
of failure to seek and obtain leave for service outside jurisdiction. The answer is definitely a resounding NO as the two issues are independent and distinct having a life of its own. Therefore not tackling the other issues raised translated to a breach of the right to fair hearing of the appellant. See Uzuda & Ors v Ebigah (2009) 1 – 9 NMLR 409 at 422 per Muntaka-Coomassie JSC; Samba Petroleum Ltd & Anor v UBA Plc & Ors. (2010) 6 NWLR page 530 at 531.
It follows that when the Court of Appeal failed to consider and make a pronouncement on the cross Appeal, a major or fundamental breach occurred. Firstly a cross-appeal is an action on its own which cannot be subsumed into the main appeal and so difficult to comprehend when the Court below held that there was no need to consider the cross-appeal of the 2nd and 3rd respondents in the circumstance of the appeal before that Court. It needs be said that a cross appeal is an appeal in its own right and cannot be subordinated under the main appeal. It is akin to a counter claim which exists separately and distinctly from the main claim and must be given its due and so does not maintain its existence
36
or survival on the substantive appeal depending for sustenance on what happens to the main appeal. I place reliance on Olodo & Ors v Iburuku & Ors {2011) LPELR – 3644 (CA); Oroja v Adeniyi (2017) ALL FWLR (Pt. 883) 1432.
From the foregoing it is clear that the decision of the Court of Appeal has to be disturbed as a miscarriage of justice took place and this Court has to set things right.
I also go along with my learned brother in the lead judgment and allow the appeal. I abide by the consequential orders made.
AMIRU SANUSI, J.S.C.: I have had the advantage of reading in advance the judgment prepared by my learned brother Rhodes-Vivour, JSC just delivered. On perusing same, I find myself in entire agreement with this reasoning and conclusion that the lower Court’s decision has to be set aside.
I too accordingly do same and restore the judgment of the trial Court. I have nothing more to add.
AMINA ADAMU AUGIE, J.S.C.: I read in draft the lead judgment delivered by my learned brother, Rhodes-Vivour, JSC, and I agree with his reasoning and conclusion that the Court has no
37
jurisdiction to hear the claims of the 3rd respondent/plaintiff, and this is due to the fact that there was failure to comply with the provisions of Section 97 of the Sheriff and Civil Process Act. The judgment of the trial Court is correct and restored, while the judgment of the Court of Appeal is hereby set aside. Appeal is allowed.
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Olabode Rhodes-Vivour, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything useful to add. I find merit in this appeal, it is hereby allowed by me. I abide by all the orders contained in the lead Judgment.
38
Appearances:
E.T. Omonemu with him, M.G. Duku. For Appellant(s)
Alhassan A. Umar for 1st Respondent, E. Ehighelua with him, O.J. Obodaya for 2nd Respondent and A.V. Etuwewe with him, M.K. Emuvakpor for 3rd Respondent.
For Respondent(s)
Appearances
E.T. Omonemu with him, M.G. Duku. For Appellant
AND
Alhassan A. Umar for 1st Respondent, E. Ehighelua with him, O.J. Obodaya for 2nd Respondent and A.V. Etuwewe with him, M.K. Emuvakpor for 3rd Respondent. For Respondent
