REUBEN IZEZE v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS(2018)

REUBEN IZEZE v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS

(2018) LCN/4637(SC)

In The Supreme Court of Nigeria

On Friday, the 13th day of April, 2018

SC.562/2017

RATIO

HOW TO PROPERLY CITE A CASE AS AN AUTHORITY

A case is an 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.

EFFECT OF A THE NON-SERVICE OF AN ORIGINATING PROCESS

If an originating process is valid any defect in service is a mere irregularity which may make such an originating process voidable but certainly not void. PER OLABODE RHODES-VIVOUR, J.S.C.

WHETHER THE NON ENDORSEMENT OF A WRIT OF SUMMONS BEFORE SERVICE OUTSIDE THE JURISDICTION FROM WHICH IT IS ISSUED IN CONTRAVENTION OF THE PROVISION OF SECTION 97 OF THE SHERIFF AND CIVIL PROCESS ACT IS A MERE IRREGULARITY THAT CAN BE REGULARIZED

SECTION 97: “Every writ of summons for service under this part out of the State of Capital Territory in which it was issued shall, IN ADDITION TO ANY OTHER endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the following effect, (that is to say)- This summon (or as the case may be) is to be served out of the………. State (or as the case may be)..,……….,.and in the State (or as the case may be)” {Emphasis Mine}. While the appellant states that the non endorsement of the writ of summons is fatal to the process as the provision of the Sheriff and Civil Process Act is mandatory, the respondents disagree advancing the position that the stipulation is not mandatory. The learned trial judge took the stance of the appellant and had held thus: “…. following from the above, that is having held that there was no endorsement on the Courts copy which is the original copy of the amended originating summons for service on the 1st and 2nd Defendant in Abuja, outside the jurisdiction of the Court. In compliance with the provision of Section 97 of the Sheriffs and Civil Process Act the said amended originating summons is null and void and of no effect.” The Court of Appeal taking a different view in setting aside what the trial Court did, stated as follows: “Let me add that even assuming without conceding that the said endorsement is not made, it does not render the writ invalid because such omission if at all available would merely amount to an irregularity.” The position taken by the Court below is not sustainable in the light of the clear and unambiguous provisions of Section 97 of Sheriff and Civil Process Act above quoted being provisions with mandatory stipulations that cannot be bent any way a Court chooses. This Court had explained it and it has remained the law and not yet changed. For effect I cite the Supreme Court case of Owners MV Arabella v NAIC (2008) 11 NWLR (Pt.1097) 182 where Ogbuagu JSC (as he then was) stated that position in these words: “It is clear that the provisions of Section 97 of the Sheriff and Civil Process Act are couched in mandatory terms. Any service of writ without the proper endorsement as stipulated under Section 97 is not a mere irregularity but is a fundamental defect that renders the writ incompetent.” See also NEPA v Onah (1997) 1 NWLR (pt. 484) 680; Adegoke Motors v Adesanya (1989) 3 NWLR (Pt.109) 250; Abacha v Fawehinmi (2006) 6 NWLR (Pt.660) 228. It follows that what is on ground is already a well cut out pathway which cannot be by-passed for any reason. Therefore the writ of summons having no endorsement on it before service outside the jurisdiction from which it is issued invalid, null and void, having no effect whatsoever and is irredeemable. Being a fundamental vice, that writ without the prescribed endorsement cannot be regularised in any way or form and cannot be utilised in that defective nature. PER MARY UKAEGO PETER-ODILI, J.S.C.

WHETHER A SUBSISTING DECISION OF A COURT THAT HAD NOT BEEN SET ASIDE IS BINDING

The learned counsel for the appellant contended that the order of the Court of Appeal sending the case back for trial on the merit without considering and ruling on the status of the case as to whether or not it is statute barred was an order in futility, there being and remaining a binding and subsisting decision of a Court which had not been set aside. I cannot agree more with the stance of the appellant. The situation is all the more germane in that an order or 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 MARY UKAEGO PETER-ODILI, 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

REUBEN IZEZE Appellant(s)

AND

INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. MR. FESTUS UTUAMA Respondent(s)

OLABODE RHODES-VIVOUR, J.S.C.(Delivering the Leading Judgment): The appellant and the 3rd respondent are members of the PDP. In 2015 the PDP conducted primaries to enable it 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. Both of them contested the primaries. The plaintiff/3rd respondent claimed he won the primaries, but the 2nd respondent substituted him with the appellant and forwarded the appellant’s name to the 1st respondent as the candidate of the PDP for the Ughelli South Constituency at the General Elections. Frustrated by the turn of events the 3rd respondent as plaintiff filed an amended Originating Summons on 21 May, 2015 wherein he sought the determination of 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 Result as the winner of the Peoples

Democratic Party (PDP) House of Assembly, Ughelli South Constituency primary election conducted by the National working Committee of 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 plaintiffs 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 plaintiffs right under the 1999 Constitution (as amended) and the Electoral Act 2010 (as amended).

And claimed against the defendants’ jointly and severally as follows:
1. A declaration that the plaintiff having won and received the certificate of result as the 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 Peoples Democratic Party (PDP) for the Delta State House of Assembly election stated 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 April, 2015 in total disregard of the result of the primaries, report of the Peoples Democratic Parry (PDP) Electoral Panel and, the Peoples Democratic Party (PDP) Electoral Appeal panel is contrary to the Constitution of the Peoples Democratic Party (PDP) Constitution (as amended) and the Electoral Act 2010 (as amended) and therefore unlawful, illegal and of no effect whatsoever.

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 Parry (PDP), reports of the Peoples Democratic Party (PDP) Electoral Panel, the 1999 Constitution (as amended) the 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 Parry (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 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 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.

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 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 the appellant) also filed memorandum of conditional appearances. Let me say straightaway that when a defendant files a conditional appearance, that is an appearance under protest and usually means an appearance to object to the Courts jurisdiction.

As was to be expected the 2nd and 3rd defendants filed similar motions on Notice 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 this 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 defendant vide a list of candidates submitted to INEC on 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 to 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 House of Assembly election of 11/4/2015 can only be granted by 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 considered judgment delivered on 5, April 2016, the learned trial judge Obile J of a Federal High Court (Warri Judicial Division) upheld the 2nd and 3rd defendants objection. His lordship said:
…….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. This is the conclusion on issue two. Whereas on issue three I hold that this suit is statute barred and ought also to be struck out.
Having so held this cause of action cannot be heard and determined on the merits, as doing so will amount to mere academic exercise.
In the final analysis, as painful as it might be the only course of action this Court is left with is to strike out this suit. This case is hereby struck out accordingly…”

The plaintiff/3rd respondent quickly filed an appeal. It was heard by the Court of Appeal (Benin Judicial Division).
The plaintiff/3rd respondent filed fifteen grounds of appeal from which he distilled five issues for determination of the appeal.

The 2nd and 3rd respondents filed separate notices of Preliminary Objection and also cross-appealed. The preliminary objections were dismissed. The Court of Appeal did not consider the cross-appeals. In hearing the main appeal it considered a sole issue which reads:
Whether the lower Court was right when it struck out the appellant’s 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 upset the judgment of the trial Court. 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 is against that judgment. Briefs were filed and exchanged by counsel. The appellant’s brief was filed on 3 August, 2017. The 1st respondent’s brief was filed on 20 November 2017 . The 2nd respondent did not file a brief while the 3rd respondents brief was filed on 27 September 2017. Learned counsel for the appellant Mr. I. Ehighelua formulated three issues for determination.
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.

Whether the Court of Appeal was right in remitting the suit back to the trial Court for hearing and determination on the merit when the Court of Appeal failed to reverse the decision of the trial Court the action was statute barred.
3. Whether the right of the appellant to a fair hearing was not breached by the failure of the Court of Appeal to give a decision on the cross appeal.

Learned counsel for the 1st respondent, Mr. F. E. Itula formulated two issues for determination:
1. Whether or not the legal position of 1st respondent in this suit is that of an umpire.
2. Whether a candidate can be substituted with another by his political party.

Learned counsel for the 2nd respondent, Mr. E.T. Omonemu did not file a 2nd respondent’s brief.
Learned counsel for the 3rd respondent, Mr. K. Mozia SAN filed a 3rd respondent’s brief on 27 September, 2017 wherein he presented three issues for determination:
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 Processes Act.
2. Whether the Court of Appeal was right

remitting the suit back to the trial Court for hearing and determination on the merit when the Court of Appeal failed to reverse the decision of the trial Court that the action was statute barred.
3. Whether the right of the appellant to a fair hearing was not breached by the failure of the Court of Appeal to give a decision on the cross appeal.

The Court of Appeal considered a sole issue which reads:
Whether the lower Court was right when it struck out the appellant suit on the ground that it lacked the necessary jurisdiction to entertain the claim as postulated in the amended originated summons dated and filed on 21/5/2015.

In resolving the sole issue the Court of Appeal considered whether there was compliance with Section 97 of the Sheriff and Civil Process Act.

If there was compliance the trial Court would have jurisdiction over the suit. Conversely if there was no compliance the trial Court would have no jurisdiction over the suit. That is exactly what is to be considered in the appellant’s and 3rd respondent’s issue 1. Since the issue is so fundamental and decisive it shall be considered, and it shall be the only issue for consideration.

At the hearing of the appeal on 17 January 2018 learned counsel for the appellant Mr. I. Ehighelua adopted the appellant’s brief filed on 3 August, 2017 and urged the Court to allow the appeal and restore the judgment of the Federal High Court. Learned counsel filed a 3rd cross respondent’s brief on 21 August, 2017. It included a Preliminary objection. He urged the Court to strike out or dismiss the cross appeal for being incompetent.

Learned counsel for the 1st respondent Mr. Itula filed the 1st respondent brief on 20 November, 2017, and made it clear that the 1st respondent has no preference for any of the parties in the appeal, and that his client will abide by the decision of this honourable Court. He filed a 1st cross respondent brief on 20 November, 2017. He adopted it and urged this Court to dismiss the cross appeal.

Learned counsel for the 2nd respondent Mr. E. T. Omonemu did not file a 2nd respondents brief, but filed a 2nd cross respondents brief on 29 September 2017. He adopted it and urged the Court to dismiss the cross appeal.

Learned counsel for the 3rd respondent Mr. K. Mozia SAN adopted the 3rd respondents

brief on 27 September 2017 and urged this Court to dismiss the appeal. He filed a Notice of Cross appeal on 3 July 2017 and a cross appellants brief on 2 August, 2017 , and cross appellants reply brief on 10 November 2017. He urged this Court to dismiss the Preliminary objection and allow the cross appeal.
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.

The main point to be considered in this issue is whether or not the writ that started, commenced, the present action leading to this appeal was void for non-compliance with Sections 97, 98 and 99 of the Sheriffs and Civil Process Act. Mr. Ehighelua, learned counsel for the appellant contended that the amended originating summons is void, observing that there was no application for leave filed before the originating summons was issued on 9/4/2015, and that the said originating process was not endorsed as mandatorily required by Section 97 of the Sheriff and Civil Process Act. Reliance was placed on Owners of M.V. Arabella v NAIC (2008) 11 NWLR (Pt.1097) p. 182.

Learned counsel for the 1st respondent, Mr. F.E. Itula did not address this issue. Learned counsel for the 2nd respondent, Mr. E.T. Omonemu did not file a brief. Mr. K. Mozia SAN on the other hand contended that the amended originating summons is valid as there was compliance with Section 97 of the Sheriff and Civil Process Act and Order 6 Rule 14 of the Federal High Court Civil Procedure Rules 2009. Reliance was placed on Enterprise Bank Ltd v Aroso (2014) 3 NWLR (Pt.1394) p.256.

From the arguments in the briefs it is evident that counsel interpreted this Courts various decisions where Section 97 of the Sheriff and Civil Process Act was considered, e.g.
Adegoke Motors v Adesanya (1989) 20 NSCC (Pt. II) p.327.
Owners of M.V. Arabella v. NAIC (2008) 11 NWLR (Pt. 1097) p.182.
and where it was not considered at all, e.g. Enterprise, Bank Ltd v Aroso (2014) 3 NWLR (Pt.1394) p.256 and arrived at different conclusions at to what was actually decided by this Court. Pronouncements of this Court must at all times be considered after understanding the facts and circumstances in which the pronouncements were made. It would amount to citing

cases out of con if pronouncements are relied on without relating them to the facts that induced them. For example, learned counsel for the 3rd respondent relied heavily on Enterprise Bank Ltd v Aroso (supra) as authority on how Section 97 of the Sheriff and Civil Process Act is interpreted. In the case, the issue was whether the Writ of Summons for service out of jurisdiction in Ondo State was done in compliance with Order 5 Rule 1 of the High Court (Civil Procedure) Rules of Ekiti State which states that the writ of Summons shall be issued by the Registrar and Rule 6 of Order 5 which states that:
Subject to the provision of these Rules or of any written law in force in the state, no writ of summons for service out of the jurisdiction, or of which notice is to be given out of jurisdiction shall be issued without the leave of Court or a judge in chambers.

In the case Section 97 of the Sheriff and Civil Process Act was not considered. On the other hand in Adegoke Motors Ltd v Adesanya & Anor supra Section 97 of the Sheriff and Civil Process Act was considered. Adegoke Motors Ltd v Adesanya (supra) is authority for Section 97 of Sheriff and

Civil Process Act, while Enterprise Bank Ltd v Aroso (supra) is not an authority for Section 97 (supra).

Once again Enterprise Bank Ltd v Aroso is not authority for Section 97 of the Sheriff and Civil Process Act.

The Originating summons was issued out of the Registry of the Federal High Court, Warri Judicial Division on 9 April 2015. It was signed by a judge and counsel on 9 April, 2015. See page 3 and 4 of Vol.1 of the Record of Appeal.

The originating summons does not have any mandatory endorsement as required by Section 97 of the Sheriff and Civil Process Act.

The 1st respondent, (INEC) and the 2nd respondent, (PDP) have their respective addresses for service at Abuja, which is not in Delta State. An amended Originating Summons was filed on 21 May 2015. The addresses for service are the same as on page 4, and there is no mandatory endorsement.

Aware of his irredeemable blunder learned counsel filed a motion exparte on 10 April, 2015 for leave to issue and serve originating summons on the 1st and 2nd defendants in Abuja, that is outside the jurisdiction of the Warri Judicial Division.

If an originating process is valid any defect in service is a mere irregularity which may make such an originating process voidable but certainly not void.
When the words used in Section 97 of the Sheriff and Civil Process Act are given their ordinary plain meaning without embellishments, it becomes very clear that the provision is mandatory. Service of an originating process without the endorsement as clearly stated under Section 97 supra is not an irregularity. It is a fundamental defect which renders the originating process void.
See
Adegoke Motors Ltd v Adesanya & Anor (1989) 20 NSCC (Pt.II) p.327.
Nwabueze & Anor v. Justice Obi Okoye (1988) 19 NSCC (Pt. III) p.53.
Skenconsult (Nig) Ltd v Ukey (1981) 12 NSCC P1.
Under Section 97 of the Sheriff and Civil Process Act, if an originating process for service out of jurisdiction does not have the endorsement:
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 (or as the case may be).”
Such an originating summons is invalid. It is clear that Section 97 of the Sheriff and Civil Process Act is couched in mandatory terms. The Courts would 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 adjudtcate on the suit. It is fundamental that the claimant obeys and comply with the provision. No valid appearance can be entered by the defendant to an originating process that does not have the mandatory endorsement except to enter conditional appearance. I have examined the originating summons and the amended originating summons and I am satisfied that they were not endorsed for service on the 1st and 2nd defendants at their addresses in Abuja. The originating process is in the circumstances invalid, worthless, and void. Applying for leave to issue and serve the amended originating summons on 10 April 2015, a day after the said process was issued and served amounts to seeking permission after

the act is done. Leave must be obtained before service is affected.
Service of an invalid amended originating summons on the 1st and 2nd defendants is akin to no service at all. There is absolutely nothing to respond to by the defendants. Section 98 of the Sheriff and Civil Process Act provides for concurrent writs. It reads:
98. A writ of summons for service out of the state or the Capital Territory in which it was issued may be issued as a concurrent writ with one for service within such state or the Capital Territory and shall in that case be marked as concurrent.
While Section 99 provides for the time limited for answering to summons. It states that:
99. The period specified in a writ of summons for service under this part as the period within which a defendant is require to answer before the Court to the writ of summons shall be not less than thirty days after service of the writ has been effected, or if a longer period is prescribed by the Rules of the Court within which the writ of summons is issued, not less than that longer period.
The words used are clear and unambiguous and must be given their ordinary usual meaning.

See
Mobil v. F.B.I.R. (1977) 3SC P.53
Toriola v. William (1982) 7 SC p. 27
Section 98 becomes applicable after leave has been obtained and service is to be effected while under Section 99 supra the defendant is to respond within 30 days after service.
To properly raise the issue of non-compliance with the provisions of Sections 97 , 98 and 99 of the Sheriff and Civil Process Act there must be clear evidence that the originating process was not endorsed for service outside jurisdiction of the Court as required by Section 97. There must be evidence that the defendant was required to appear in Court within a period of less than 30 days after service. Since there was non-compliance with Section 97, compliance with Sections 98 and 99 no longer arise. The amended originating summons is irredeemable, worthless and invalid.
Order 6 Rule 13-17 of the Federal High Court (Civil Procedure) Rules and Section 97, 98, 99 of the Sheriff and Civil Process Act.
After the Court of Appeal examined the above it concluded as follows:
……………..I am left with no other option than to come to the conclusion that the Court misdirected

itself and has a misconception of the provision of Order 6 Rules 13-17 of the Federal High Court (Civil Procedure) Rules and Section 97 and 98 of the Sheriff and Civil Process Act by concluding that the appellant did not seek nor obtain the leave to issue the originating summons. Leave to issue as I said before, is not part of the requirements of Order 6 Rule 13-17 of the Federal High Court (Civil Procedure) Rules…….
It is important at this stage that I examine relevant provisions of the Federal High Court (Civil Procedure) Rules.
Order 6 Rule 13:
Service out of jurisdiction of a writ of summons or notice of a writ of summons may be allowed by the Court or a judge in chambers whenever
13(g). Any person out of jurisdiction is a necessary or proper party to an action properly brought against some other party within the jurisdiction; or
14(i). Every application for leave to serve a writ or notice on a defendant out of the jurisdiction shall be supported by affidavit or other evidence stating that in the belief of the deponent the plaintiff has a good cause of action and showing in what place or country the defendant is or

probably may be found, and the grounds upon which application is made.
(2) No such leave shall be granted unless it is made sufficiently to appear to the Court or a judge in chambers that the cause is a proper one for service out of jurisdiction under these Rules.
17.(1) Service out of jurisdiction may be allowed by the Court or a judge in chambers of the following processes or of notices thereof, that is to say.
(a) An originating summons, where the proceeding begun by an originating summons might have been begun by a writ of summons under these Rules.”
The above was not considered by the Federal High Court. The learned trial judge struck out the suit for failure to comply with the provision of Section 97 of the Sheriff and Civil Process Act.
A diligent examination of Order 6 Rules 13-17 of the Federal High Court (Civil Procedure) Rules reveals that the requirement that the originating process for service out of jurisdiction must be endorsed as provided by Section 97 of the Sheriff and Civil Process Act is not part of the said Rules. The Sheriff and Civil Process Act is an Act of the National Assembly, while the Federal High Court

(Civil Procedure) Rules is a subsidiary legislation, a bye law, inferior to an Act of the National Assembly.
The Court of Appeal was wrong to restrict itself to whether the originating process was properly issued and served on the 1st and 2nd respondents, oblivious of superior legislation, to wit: the mandatory requirement of compliance with Section 97 of the Sheriff and Civil Process Act which was not even addressed by the Court. The mandatory requirement of Section 97 of the Sheriffs and Civil Process Act must be complied with before the originating process can be valid. It is only after there is a proper endorsement on the originating process, that issuance and service follows. Where, as in this case the originating process is invalid issuing and serving it is an exercise in futility as you cannot serve a void process.
Once again in Enterprise Bank Ltd v Aroso (supra) Section 97 of the Sheriff and Civil Process Act was not considered. That case was decided on Rules of Court. It is not authority for service of originating process out of jurisdiction when Sections 97, 98 and 99 of the Sheriff and Civil Process Act are considered or are in issue.<br< p=””
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CROSS APPEAL
The cross appellant, Mr. Festus Utuama, by his cross appeal seeks the following relief from this Court:
To set aside the part of the judgment of the Court of Appeal delivered on June 12, 2017 remitting the suit to the Hon. Chief Judge of the Federal High Court for re-hearing and determination on the merits and for this Honourable Court to hear and determine the case on its merit pursuant to the powers conferred by Section 22 of the Supreme Court Act.”

The above would have been worth considering if the judgment of the Court of Appeal is correct, but it is wrong. Since this Court agrees with the trial Court that, that Court had no jurisdiction to hear the cross appellant’s claim, in view of his invalid amended originating summons, it would amount to a futile exercise invoking Section 22 of the Supreme Court Act to hear and determine a case whose originating process is void. Once a Court lacks jurisdiction as a result of a fundamental defect in the originating process all that can be done is to strike out the case. If it is still the desire of the plaintiff to proceed with his claim, he can only do so by filing a fresh action.

In the light of all that I have been saying the cross appeal is not worth considering in view of my conclusions in the main appeal.

Before I conclude this judgment I must observe that the issue in this suit is for the Court to decide who as between Mr. Festus Utuama and Mr. Reuben Izeze is the PDP’s candidate for Ughelli South Constituency in the Delta State House of Assembly in the General Elections held in 2015.

The tenure comes to an end in 2019. If this case had gone back to the High Court for a trial on the merits as the Court of Appeal directed, subsequent appeals would not have been exhausted by 2020, well into the next four year tenure. It is highly recommended by me that it is time for a cut-off point. Matters such as this should come to an end within one year after the General Election, even if Litigation is not concluded. Such matters should never be open ended.

In the end, the Court of Appeal was wrong. The trial Court was right. 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.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Olabode Rhodes-Vivour JSC and to underscore the support for the reasonings, I shall make some remarks.

This is an appeal against the judgment of the Court of Appeal, Benin Division or Court below or Lower Court delivered on the 12/6/2017 the Court of Appeal or Court below which allowed the appeal and set aside the judgment of the trial Court and ordering the matter be heard on the merit by another judge of the Federal High Court. The appellant dissatisfied has appealed to the Apex Court while the 3rd respondent, Festus Ituama Cross-appealed.

The full details of the facts leading to this appeal are captured well in the lead judgment and I shall not repeat them here unless the occasion warrants a reference to any part of those facts.

The hearing of the appeal took place on the 17/1/18 at which Ikhide Ehighelua Esq., learned counsel for the appellant adopted his brief of argument filed on 3/8/17 in which he formulated three issues for determination, viz:

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 remitting the suit back to the trial Court for hearing and determination on the merit when the Court of Appeal failed to reverse the decision of the trial Court that the action was statute barred. (Ground 2).
3. Whether the right of the appellant to a fair hearing was not breached by the failure of the Court of Appeal to give a decision on the Cross-appeal. (Ground 3).Fredricks E. Itula Esq., learned counsel for the 1st respondent adopted its brief of argument filed on 20/11/17 in which were raised two issues for determination which are thus:
1. Whether or not the legal position of 1st respondent in this suit is that of an umpire.
2. Whether a candidate can be substituted with another by his political party.
E. T. Omonemu Esq. of counsel for the 2nd respondent stated that he filed no brief.Learned counsel for the 3rd respondent, Ken E. Mozia SAN adopted the brief of argument settled by

Ama Etuwewe Esq. and filed on 27/7/17 and also adopted the issues as crafted by the appellant.

For ease of reference I shall utilise the issues as distilled by the appellant.
ISSUE ONE:
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 positions of the Sheriff and Civil Process Act.
Learned counsel for the appellant contended that there was no application for leave filed before the originating summons was issued on 9/4/2015 and there was no endorsement as required by Section 97 of the Sheriff and Civil Process Act and this failure is fatal to the originating process and same liable to be set aside once the objection is raised timeously. He cited Owners of MV Arabella v NAIC (2008) 11 NWLR (Pt.1097) 182; NEPA v Onah (1997) 1 NWLR (Pt.484) 680; Adegoke Motors v Adesanya (1989) 3 NWLR (Pt.109) 250; Abacha v Fawehinmi (2006) 6 NWLR (pt.660) 228.

Learned counsel for the 1st respondent (INEC) is more concerned with being the impartial umpire, how far it can be involved in the defence of suits such as this. He contended that originating summons is best

suited for a quick disposal of suits on election matters which require some measure of urgency. He dwelt on the salient sections of the Electoral Act in regard to party primaries and where the Court can entertain disputes arising therefrom. He referred to Daniel v INEC & Ors (2015) LPELR (SC) 757/2013; Ugwu v. Ararume (2007) 12 NWLR (Pt.1048) 367; Section 87 (a) of the Electoral Act 2010 (as amended); Barrister Orker Jev & Anor v Sekav Dzua Iyortyom & Ors (2014) LPELR – 23000 (SC).

For the 3rd respondent, learned Senior Advocate 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 requirement of the law. That the requirement for application for leave of Court to serve outside the jurisdiction of the trial Court on the one or more of the defendants at the trial Court residing outside the Court’s jurisdiction where that is the case is not mandatory. He cited Order 6 Rule 13 (1) and 14 (1) of the Federal High Court (Civil Procedure) Rules 2009; Section 97 of the Sheriff and Civil Processes Act; Enterprise Bank Ltd v Aroso (2014) 3 NWLR (Pt.1394) 256.

That the Court below was right in holding that by the combined provision of Order 6 Rules 13 – 17 of the Federal High Court Rules and Sections 97 and 98 of the Sheriff and Civil Process Act that it is the copy of the originating process to be served on the party resident outside the jurisdiction of the trial Court that must carry such mandatory endorsement, being a concurrent writ and not every copy. He cited Enterprise Bank Ltd v Aroso (supra).

It is common ground that the originating summons in this case was issued out of the registry of the Federal High Court, Warri Division on the 9th day of April, 2015 and from the records it is seen that both the learned trial Judge and counsel who signed the summons had it signed and issued on the said date. However from the endorsement on the process 1st and 2nd defendants and herein respondents both have their respective addresses for service at Abuja outside Delta State where the originating summons was issued from. That brings into view the provisions of Section 97 of the Sheriff and Civil Process Act as to whether or not it was complied with as it the operating legal frame work for service

in relation to what in issue herein and it provides thus:
SECTION 97:
“Every writ of summons for service under this part out of the State of Capital Territory in which it was issued shall, IN ADDITION TO ANY OTHER endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the following effect, (that is to say)-
This summon (or as the case may be) is to be served out of the………. State (or as the case may be)..,……….,.and in the State (or as the case may be)” {Emphasis Mine}.
While the appellant states that the non endorsement of the writ of summons is fatal to the process as the provision of the Sheriff and Civil Process Act is mandatory, the respondents disagree advancing the position that the stipulation is not mandatory. The learned trial judge took the stance of the appellant and had held thus:
“…. following from the above, that is having held that there was no endorsement on the Courts copy which is the original copy of the amended originating summons for service on the 1st and 2nd Defendant in Abuja, outside the jurisdiction of the Court. In compliance

with the provision of Section 97 of the Sheriffs and Civil Process Act the said amended originating summons is null and void and of no effect.”
The Court of Appeal taking a different view in setting aside what the trial Court did, stated as follows:
“Let me add that even assuming without conceding that the said endorsement is not made, it does not render the writ invalid because such omission if at all available would merely amount to an irregularity.”
The position taken by the Court below is not sustainable in the light of the clear and unambiguous provisions of Section 97 of Sheriff and Civil Process Act above quoted being provisions with mandatory stipulations that cannot be bent any way a Court chooses. This Court had explained it and it has remained the law and not yet changed. For effect I cite the Supreme Court case of Owners MV Arabella v NAIC (2008) 11 NWLR (Pt.1097) 182 where Ogbuagu JSC (as he then was) stated that position in these words:
“It is clear that the provisions of Section 97 of the Sheriff and Civil Process Act are couched in mandatory terms. Any service of writ without the proper endorsement as stipulated under Section

97 is not a mere irregularity but is a fundamental defect that renders the writ incompetent.”
See also NEPA v Onah (1997) 1 NWLR (pt. 484) 680; Adegoke Motors v Adesanya (1989) 3 NWLR (Pt.109) 250; Abacha v Fawehinmi (2006) 6 NWLR (Pt.660) 228.
It follows that what is on ground is already a well cut out pathway which cannot be by-passed for any reason. Therefore the writ of summons having no endorsement on it before service outside the jurisdiction from which it is issued invalid, null and void, having no effect whatsoever and is irredeemable. Being a fundamental vice, that writ without the prescribed endorsement cannot be regularised in any way or form and cannot be utilised in that defective nature.

The issue is definitely resolved in favour of the appellant and so the Court of Appeal was wrong to hold that defective writ usable.

ISSUES TWO AND THREE:
Whether the Court of Appeal was right in remitting the suit back to the trial Court for hearing and determination on the merit when the Court of Appeal failed to reverse the decision of the trial Court that the action was statute barred
Whether the right of the appellant to a

fair hearing was not breached by the failure of the Court of Appeal to give a decision on the Cross-appeal

Canvassing the position of the appellant, learned counsel stated that the decision of the trial Court that the suit of the plaintiffs/respondents was statute barred being in violation of the provision of the Public Officers Protection Act, not having been appealed against remained valid and subsisting. That the Court below without delved into that area and reversing that decision cannot revert the matter back to the trial Court for hearing on the merit. He cited A. G. Anambra State v A. G. Federation (2005) 9 NWLR (pt.931) 572; Rossek v ACB Ltd (1993) NWLR (Pt.312) 382; Williams v Sanusi (1961) All NLR 334 at 337; Yonwuren v Modern Signs (1985) 1 NWLR (Pt.2) 244; Mcfoy v UAC (1961) 2 All ER 1169.

That the Lower Court erred in law in failing to determine the cross-appeal which was filed by the appellant before the Court of Appeal. He cited Emeka v The State (2014) LPELR 23020 (SC); Oro v Falade (1995) 5 NWLR (pt.396) 385; Garba v Mohammed (2016) LPELR – 40612 (SC).

That the failure to consider the cross-appeal breached the appellant’s

right to fair hearing. He cited Oroja v Adeniyi (2017) All FWLR (Pt.883) 1433; Ndukauba v Kolomo (2005) 4 NWLR (Pt.915) 411; Salu v Egeibon (1994) 6 NWLR (pt.348) 25.

Learned counsel for the 1st respondent submitted that the Court should invoke its powers under Section 22 of the Supreme Court Act and determine the substantive suit.
It was contended for the 3rd respondent that the Court below effectively dealt with the issue of whether or not the suit was statute barred and so did not need to go into it again the Cross-appeal. He referred to Husseni v Mohammed (2015) 3 NWLR (Pt.1445) 100 at 125; Kayili v Yilbuk (2015) 7 NWLR (Pt. 1457) 26 at 77.

That assuming the Lower Court erred in the manner of consideration of the appeal and cross-appeal that no miscarriage of justice occurred and so this Court should let the decision of the court below stand. He cited Adegbuyi v APC (2015) 2 NWLR (Pt.1442) 1 at 24; Adisa v State (2015) 4 NWLR (Pt.1450) 475 at 509; Eyiboh v Abia (2012) 16 NWLR (Pt.1325) 51 at 82 – 83.

The trial Court had stated on the issue of whether or not the suit was statute barred in the following words:
“To my mind, the narrow

issue for determination here is did this cause of action arise 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 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 allowed by limitation of law…….
In sum, this case is statute barred and is liable to be struck out and I so hold.”

The Court below had not ruled on that status of the suit as to whether it was statute barred before it remitted the case back to the Chief Judge of the trial Court for trial on the merit.

statute barred and incompetent and there is nothing to remit to the trial Federal High Court on which a hearing on the merits can be done. In other words the suit by that declaration of the trial Court has gone into nothingness and one cannot place anything on that void. See Attorney General Anambra State v Attorney General of the Federation (2005) 9 NWLR (Pt.931) 572 per Katsina-Alu JSC (as he then was); Rossek v ACB Ltd (1993) NWLR (Pt.312) 2 & 3; Wiiliams v Sanusi (1961) All NLR 334 at 337; Yonwuren v Modern Signs (1985) 1 NWLR (Pt.2) 3 All ER 1169; (1962) AC 1523.

In the matter of the lack of fair hearing which occasioned a miscarriage of justice in relation to the Court of Appeal not dealing or considering the cross-appeal. Indeed the situation in this matter is a breach of great magnitude as a cross appeal is like a counter claim and is totally different from the main appeal or claim being distinct. That being the case, the Court below ought to have considered and ruled on the cross-appeal whatever its finding or ruling in the main appeal and this failure clearly the Court below was in error and had the right to fair hearing of the now

appellant infringed upon. See Oroja v Adeniyi (2017) All FWLR (Pt.883) 1433: Ndukauba v Kolomo (2005) 4 NWLR (Pt.915) 411; Salu v Egeibon (1994) 6 NWLR (Pt.348) 25.

In the light of the above, this appeal is meritorious and I allow it based on the well considered leading judgment.
Appeal Allowed and the judgment of the Court of Appeal set aside, while the decision of the trial High Court is restored.
I abide by the consequential orders made.

CROSS – APPEAL:
The reliefs on which this cross – appeal are anchored are stated hereunder, viz:
1. A declaration that the plaintiff having won and received the Certificate of Result as the 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 the 11th day of April, 2015.
2. A declaration that the 1st and 2nd defendant’s surreptitious substitution of the plaintiff’s 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 the 11th day of April 2015 in total disregard of the result of the primaries, result of the Peoples Democratic Party (PDP) Electoral Panel and the Peoples Democratic Party (PDP) Electoral Appeal Panel is contrary to the Constitution of the Peoples Democratic Party (PDP), Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Electoral Act 2010 (as amended) and 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 PDP, reports of the people Democratic party (PDP) Electoral Panel, the Peoples Democratic Party (PDP) Electoral Appeal panel, the 1999 Constitution (as amended) the Electoral Act 2010 (as amended) is 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 the

11th day of April 2015.
5. 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.
6. 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 date of swearing in until judgment is delivered.

Learned counsel for the Cross-appellant, Ama Etuewewe Esq. adopted his brief of argument filed on 2/8//2017 and in it distilled two issues for determination which are as follows:
1. Whether the Lower Court was right when it remitted the cross-appellant’s claim to the trial Court for hearing and determination on the merit having set aside the judgment of the trial Court. (Ground 1).
2. Whether this Honourable Court in the circumstances of the case ought to invoke its powers under Section 22 of the Supreme Court Act to hear and determine the cross appellant’s case on its merit, the lower Court having failed to invoke its powers to hear and determine

the case on its merit under Section 15 of the Court of Appeal Act. (Ground 2).

Learned counsel also adopted the cross-appellant’s replies to the 2nd and 3rd cross-respondent’s brief filed on 10/11/17
Learned counsel for the 1st cross-respondent, Fredericks E. Itula Esq. adopted its brief of argument filed on 20/11/17 and he formulated two issues which are thus:
1. Whether or not the legal position of 1st cross respondent in the suit is that of an umpire
2. Whether a candidate can be substituted with another by his political party

E. T. Omonemu Esq., learned counsel for the 2nd cross respondent adopted its brief of argument filed on 29/9/17 and it was crafted two issues for determination which are as follows:
1. Whether the lower Court was right in remitting the suit of the cross-appellant back to the trial Court for hearing on the merit (Ground l).
2. Whether the special powers conferred by Section 22 of the Supreme Court Act and Section 15 of the Court of Appeal Act can be invoked or exercised in all cases (Ground 2).

A Preliminary Objection was argued in the brief of argument.
Learned counsel for the

3rd cross-respondent, Ikhide Ehighelua Esq. adopted his brief of argument filed on the 21/8/17 in the alternative, he raised a Preliminary Objection and crafted two issues for determination which are thus:
1. Whether the lower Court was right to have remitted the suit of the cross-appellant back to the trial Court for the same to be heard and determined on the merits (Ground 1).
2. Whether the power conferred by the Section 22 of the Supreme Court Act and Section 15 of the Court of Appeal action be invoked or exercised in vacuoo (Ground 2).

I uphold the Preliminary Objection in this Cross-Appeal, the judgment of the trial High Court having been restored in the main appeal, the implication being that the suit ab initio was null and void and nothing on which the cross-appeal can be hinged.
Therefore the cross-appeal is struck out.

AMIRU SANUSI, J.S.C.: The lead judgment prepared by my learned brother Rhodes-Vivour JSC, was served on me before now His lordship has ably and painstakingly treated all the issues canvassed by learned counsel to the parties.

I must say that having closely studied the said

Judgment, I find myself in total agreement that right from the outset, the trial Court is devoid of jurisdiction to determine the suit filed before it due to failure by the plaintiff in to the suit to comply with the provisions of Section 97 of Sheriff and Civil Processes Act. To that extent, the trial Court rightly declined jurisdiction to adjudicate on the matter

It would appear to me that when the amended originating summons there was no prior compliance with the provisions of Section 97 of the Sheriff and Civil Processes Act. The Act has mandatorily provided that the said process which is the one that triggered the action must be endorsed. That was not done as it relates to the Amended Originating Summons even though same was to be served outside the jurisdiction of the trial Court. That defect therefore made the trial Court to be bereft of jurisdiction to adjudicate on the matter as was rightly decided by the trial Judge and by the lower Court. In the result, therefore the trial Court lacked jurisdiction to adjudicate and determine the matter.

On the whole, for these few remarks and the detailed reasons given in the Leading Judgment that

I also agree with the reasoning and conclusions arrived at in the lead Judgment.

AMINA ADAMU AUGIE, J.S.C.: I read in draft the lead Judgment delivered by my learned brother, Rhodes-Vivour, JSC, and I agree entirely with his reasoning and conclusion that the Court of Appeal was wrong. The Trial Court was right. The trial Court has no jurisdiction to hear the claims, 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. 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. The appeal has merit and it is accordingly allow by me.

Appearances:

I.EHIGIHELUA with him, O.J. Obodaya. For Appellant(s)

F.E. ITULA with him, A.I. Obade for 1st Respondent
E.T. OMONEMU with him, M.G. Duku for 2nd Respondent
K. MOZIA SAN with him, A.V. Etuwewe, M.K. Enurakpor, F.E. Okagbare and A.E. Okiki for 3rd Respondent/Cross Appellant. For Respondent(s)

Appearances

I.EHIGIHELUA with him, O.J. Obodaya. For Appellant

AND