PDP v. INEC & ORS
CITATION: (2018) LPELR-44373(SC)
In the Supreme Court of Nigeria
ON FRIDAY, 13TH APRIL, 2018Suit No: SC.766/2017
Before Their Lordships:
OLABODE RHODES-VIVOUR Justice of the Supreme CourtMARY UKAEGO PETER-ODILI Justice of the Supreme CourtAMIRU SANUSI Justice of the Supreme CourtAMINA ADAMU AUGIE Justice of the Supreme CourtSIDI DAUDA BAGE Justice of the Supreme Court
BetweenPEOPLES DEMOCRATIC PARTY - Appellant(s)
And1. INDEPENDENT NATIONAL ELECTORALCOMMISSION (INEC)2. REUBEN IZEZE3. MR. FESTUS UTUAMA
- Respondent(s)
RATIO DECIDENDI1. CASE LAW - JUDICIAL PRECEDENT/STARE DECISIS: Whether a case is solely an authority for what
it decides"I must remind counsel that a case is authority for what it decides. Relying on a case without relating itto the facts that induced it will amount to citing the case out of the proper context. The whole purposeof citing, a case is for the law on it to be known."Per RHODES-VIVOUR, J.S.C. (P. 19, Paras. A-B) - read incontext
(201
8) LP
ELR-44
373(
SC)
2. COURT - DUTY OF COURT: Duty of an appellate Court to consider and make pronouncements on allissues formulated by parties"Curiously, the angle taken by the trial Court that the action was statute barred was not deliberatedupon by the Court below before it reached the conclusion sending the matter back to the High Court fortrial 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 bindingand 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 Courtstated:"In the present appeal, the issue of the action being statute barred is fundamental and critical to thedetermination of that case because once it is established that the action being statute barred it wouldhave brought the matter to an end without more."See Wilson v Oshin (2000) 9 NWLR (Pt. 673) 442 at 462 para H. 463.For a fact the Court below cannot remit the matter back to the Federal High Court for trial on the meritwhen the decision of that Court declining jurisdiction had not been addressed on appeal. This isbecause the earlier trial decision remained valid and subsisting and cannot be ignored or overreachedand 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 toconsider and pronounce on all the issues that were properly canvassed before it and failure to do soamounts 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 goother issues is when those issues can be subsumed into the one considered and pronounced upon. Inthis case at hand, the question that arises is if an issue of an action being statute barred can be easilysubsumed into the issue of failure to seek and obtain leave for service outside jurisdiction. The answeris 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 theappellant. See Uzuda & Ors v Ebigah (2009) 8 - 9 NMLR 409 at 422 per Muntaka-Coomassie JSC; SambaPetroleum 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 crossAppeal, a major or fundamental breach occurred. Firstly a cross-appeal is an action on its own whichcannot be subsumed into the main appeal and so difficult to comprehend when the Court below heldthat there was no need to consider the cross-appeal of the 2nd and 3rd respondents in thecircumstance of the appeal before that Court. It needs be said that a cross appeal is an appeal in itsown right and cannot be subordinated under the main appeal. It is akin to a counter claim which existsseparately and distinctly from the main claim and must be given its due and so does not maintain itsexistence or survival on the substantive appeal depending for sustenance on what happens to the mainappeal. 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 amiscarriage of justice took place and this Court has to set things right."Per PETER-ODILI, J.S.C. (Pp.34-37, Paras. A-B) - read in context
3. PRACTICE AND PROCEDURE - CONDITIONAL APPEARANCE: Meaning and nature of conditionalappearance"A conditional appearance is an appearance under protest and usually means an appearance to objectto the Court's jurisdiction."Per RHODES-VIVOUR, J.S.C. (P. 6, Paras. C-D) - read in context
4. PRACTICE AND PROCEDURE - HEARING NOTICE: Fundamental nature of the service of hearingnotice on parties in the adjudication process and effect of failure to serve same where required"When a case is called and the defendant is absent, it is the duty of the Court to find out if thedefendant was served. If he was not served the case is adjourned to another date for service to beproperly effected on the defendant.This is premised on the long settled position of the law that failure to give notice of proceedings to anopposing party in a case where service of process is required is a fundamental omission (except whereproceedings are exparte) which renders the proceedings void because the Court would have nojurisdiction to entertain such a suit. See Haruna v. Ladeinde (1987) 4 NWLR (Pt. 67) p. 941, Obimonurev Erinosho (1966) 1 ANLR p. 250."Per RHODES-VIVOUR, J.S.C. (P. 13, Paras. B-E) - read in context
(201
8) LP
ELR-44
373(
SC)
5. PRACTICE AND PROCEDURE - ISSUANCE/SERVICE OF ORIGINATING PROCESS(ES): Optionsavailable to a defendant who was served with a writ of summons in breach of Sections 97 and 99 of theSheriffs and Civil Process Act"When an originating process is served on the defendant and he has an objection to it, he is expectedto 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 theground of originating process and service being invalid.If the defendant does not follow the above procedure he cannot question the originating process orservice on appeal."Per RHODES-VIVOUR, J.S.C. (Pp. 13-14, Paras. E-A) - read in context
6. PRACTICE AND PROCEDURE - ISSUANCE/SERVICE OF ORIGINATING PROCESS(ES): Effect offailure to obtain leave and properly endorse a writ of summons to be served outside jurisdiction of theCourt"I shall consider whether there was compliance with Section 97 of the Sheriff and Civil Process Act. Ifthere 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:"Every writ of summons for service under this part out of the State or the Capital Territory which it wasissued shall in addition to any other endorsement or notice required by the law of such State or theCapital 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 inthe .... State (as the case may be)."Where the words used in a statute are clear and unambiguous they must be given their ordinarymeaning. 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 inmandatory terms. It is abundantly clear that any service of a writ without the proper endorsement asstipulated by Section 97 supra, is not a mere irregularity but is a fundamental defect that renders thewrit 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 thesummons is to be served out of the State and in which State it is to be settled. Once again failure toendorse the required notice on an originating process for service outside a State where it was issued isnot a mere irregularity but a fundamental defect that renders the originating process incompetent. ACourt would be deprived of jurisdiction to hear the case if satisfied that there is non-compliance withSection 97 of the Sheriffs and Civil Process Act. See Odu'a 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.1The Courts have no discretion under Section 97 of the Sheriffs and Civil Process Act. Once the claimantfails to comply with the mandatory provision in Section 97 supra the Court would no longer havejurisdiction to hear the suit. It is fundamental that the claimant obeys and complies fully with theprovision. No valid appearance can be entered by the defendant to an originating process that does nothave the mandatoryendorsement, except to enter conditional appearance.I have examined the originating summons and the subsequent amendment to it and I am satisfied thatthere is no endorsement on it for service in Abuja outside Delta State. The originating summons isinvalid, 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 thisappeal 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 wouldhave no jurisdiction to hear the case."Per RHODES-VIVOUR, J.S.C. (Pp. 15-18, Paras. E-C) - read incontext
(201
8) LP
ELR-44
373(
SC)
7. PRACTICE AND PROCEDURE - ISSUANCE/SERVICE OF ORIGINATING PROCESS(ES): Effect offailure to obtain leave of Court before endorsement of a writ for service out of jurisdiction"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:"Every writ of summons for service under this part out of the State or the capital Territory which it wasissued shall in addition to any other endorsement or notice required by the law of such State or theCapital 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 ofCourt."The import of leave where so required and is not sought and obtained is that the writ, originatingsummons or any originating process whereby the leave is a condition process to the validity of theoriginating 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 thejurisdiction, is issued, leave of the High Court must be obtained and if no such leave is obtained prior totaking out of the writ then, the writ is vitiated and would be declared null and void. The decision isbinding 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'sJurisdiction encompasses the whole Federation of Nigeria, it did not need the leave of the Federal HighCourt of Owerri, to be first sought and obtained before a writ of summons could issue and to obtainpermission to serve the defendant/appellant in Port Harcourt. They even have the temerity to contendthat failure to obtain leave either for the writ to issue or permission to serve in Port-Harcourt, a placeoutside the jurisdiction of the Federal High Court, Owerri is a mere irregularity. This argument ismisplaced 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 & 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 ofCourt."The Court explained further:"Generally a plaintiff desirous of issuing a writ for service outside the jurisdiction of the Court files anex parte application seeking for leave to issue the said writ and attaches an unsigned copy of the writto the affidavit in support of the application. Thereafter the plaintiff can issue same subsequent toobtaining the required leave to do so. Anything short of this renders the writ incompetent ab initio, forany writ of summons meant for service outside the jurisdiction of the Court which is issued before orwithout leave is null and void. See Adegoke Motors Ltd v Adesanya (1989) 3 NWLR (pt. 109) 250. Seealso Agip (Nig.) v Agip Petrol Int'l (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 thisinstance is thus: "1. For service on 1st defendant INEC Office, Abuja2. For Service on 2nd defendant .. Peoples Democratic party National secretariat Wadata plaza, plot1970 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 tobe made in Abuja which is out of the Delta State territory and so the requirement for the leave to servethe process outside Delta State cannot be bypassed. The matter is fundamental that the absence ofthe leave of the trial Court before signing or sealing of the writ for service out of the jurisdiction ofDelta State is a breach which extinguished the life out of the writ. In this, I find support in the case ofDrexel 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 suitlong before the 2nd and 3rd defendants filed their counter affidavit to the originating summons. Therewas a Memorandum of conditional Appearance and so the right was not lost in the challenge to theCourt's jurisdiction and this timeously.See 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 (2005) 12 NWLR (Pt.1102) 691."Per PETER-ODILI,J.S.C. (Pp. 24-29, Paras. F-A) - read in context
(201
8) LP
ELR-44
373(
SC)
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
(201
8) LP
ELR-44
373(
SC)
t h e 3 r d r e s p o n d e n t a s p l a i n t i f f f i l e d a n
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
(201
8) LP
ELR-44
373(
SC)
2
(201
8) LP
ELR-44
373(
SC)
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 defendant’s
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
(201
8) LP
ELR-44
373(
SC)
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
(201
8) LP
ELR-44
373(
SC)
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
(201
8) LP
ELR-44
373(
SC)
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
(201
8) LP
ELR-44
373(
SC)
6
(201
8) LP
ELR-44
373(
SC)
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
(201
8) LP
ELR-44
373(
SC)
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
(201
8) LP
ELR-44
373(
SC)
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 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
(201
8) LP
ELR-44
373(
SC)
(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
(201
8) LP
ELR-44
373(
SC)
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
appellant’s 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 respondent’s 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
(201
8) LP
ELR-44
373(
SC)
11
(201
8) LP
ELR-44
373(
SC)
properly issued in accordance with Section 97 of the
Sheriffs and Civil Process Act. The trial Court declined
jurisdiction to hear the 3rd respondent’s/plaintiff’s 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
(201
8) LP
ELR-44
373(
SC)
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
(201
8) LP
ELR-44
373(
SC)
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
(201
8) LP
ELR-44
373(
SC)
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
(201
8) LP
ELR-44
373(
SC)
“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
(201
8) LP
ELR-44
373(
SC)
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 Odu’a 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
(201
8) LP
ELR-44
373(
SC)
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
(201
8) LP
ELR-44
373(
SC)
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 context. 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
(201
8) LP
ELR-44
373(
SC)
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
(201
8) LP
ELR-44
373(
SC)
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 (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
(201
8) LP
ELR-44
373(
SC)
21
(201
8) LP
ELR-44
373(
SC)
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
(201
8) LP
ELR-44
373(
SC)
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 Sherriff’s 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
(201
8) LP
ELR-44
373(
SC)
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
(201
8) LP
ELR-44
373(
SC)
"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
(201
8) LP
ELR-44
373(
SC)
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
(201
8) LP
ELR-44
373(
SC)
& 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
Int’l (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
(201
8) LP
ELR-44
373(
SC)
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
(201
8) LP
ELR-44
373(
SC)
Court’s 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.
(201
8) LP
ELR-44
373(
SC)
Learned counsel for the appellant
29
(201
8) LP
ELR-44
373(
SC)
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
(201
8) LP
ELR-44
373(
SC)
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
(201
8) LP
ELR-44
373(
SC)
31
(201
8) LP
ELR-44
373(
SC)
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 respondent’s 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 respondent’s 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
(201
8) LP
ELR-44
373(
SC)
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
(201
8) LP
ELR-44
373(
SC)
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
(201
8) LP
ELR-44
373(
SC)
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
(201
8) LP
ELR-44
373(
SC)
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
(201
8) LP
ELR-44
373(
SC)
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 al low 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
(201
8) LP
ELR-44
373(
SC)
j u r i s d i c t i o n t o h e a r t h e c l a i m s o f t h e 3 r d
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
(201
8) LP
ELR-44
373(
SC)
Appearances:
E.T. Omonemu with him, M.G. Duku. ForAppellant(s)
Alhassan A. Umar for 1st Respondent, E.Ehighelua with him, O.J. Obodaya for 2ndRespondent and A.V. Etuwewe with him, M.K.Emuvakpor for 3rd Respondent.For Respondent(s)
(201
8) LP
ELR-44
373(
SC)