IN THE COURT OF APPEAL
Holden at Yola
RIMAMNDE BITRUS NUHU
1. SENATOR EMMANUEL BWACHA
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTOAL COMSSION (INEC)
(DELIVERED BY SAIDU TANKO HUSAINI, JCA)
This appeal is against the Ruling delivered at the Federal High Court, Jalingo in the Taraba Judicial Division on the 13th September, 2015 in Suit No. FHC/TAR/M/24/2015.
The Appellant as plaintiff instituted action at the Federal High Court, in the Federal Capital Territory, Abuja by way of the Originating Summons dated and filed on the 31st December, 2014 wherein he sought for the determination of the sole question, that is:
Whether the 2nd defendant for the purpose of selecting its candidates for the Senate Primary Election for Taraba South Senatorial District in Taraba State for the 2015 general election can adopt a procedure other than that provided in 2nd defendants Electoral guideline for Primary Elections 2014 the 2nd defendants Constitution 2012 (as amended) and the Electoral Act, 2010 (as amended) .
As a consequence the plaintiff (Appellant) sought all the reliefs covered the Originating Summons as follows:
WHEREOF the plaintiff (s) the followings:
(i) A DECLARATION that the 2nd defendant cannot adopt any procedure other than that provided in the 2nd defendants Electoral Guideline for Primary Elections 2014, Section 50 95) of the 2nd defendants Constitution 2012 (as amended) and Section 87 (4) (c) (i) & (ii) of the Electoral act, 2010 (as amended) for the purpose of selecting candidate for Senate to represent Taraba State South Senatorial District in Taraba State for the 2015 General Elections
(ii) A DECLARATION that the 2nd defendant having not complained with its own Electoral Guideline for Primary Elections 2014, Section 50 (5) of the 2nd defendant Constitution 2012 (as amended) and Section 87 (4) (c) (i) & (ii) of the Electoral Act, 2010 (as amended0 has not validly conducted for senate to represent south Senatorial District in Taraba State, for the 2015 General Election.
(iii) AN ORDER nullifying the primary elections conducted by the 2nd defendant on the 11th December, 2014 for the purpose of nominating a Senate candidate for the 2nd defendant to represent Taraba South Senatorial District at the Senate for the 2015 General Elections
(iv) AN ORDER directing the 2nd defendant to conduct a fresh primary election in accordance with the 2nd defendants Electoral Guideline for Primary Elections, 2014 in compliance with the 2nd defendants Constitution 2012 (as amended) and the provision of the Electoral Act, 2010 (as amended0 for the purpose of nominating a Senate candidate for the 2nd defendant to present Taraba State Senatorial District in Taraba State.
(v) AN ORDER restraining the 3rd defendant from accepting and /or recognizing or dealing in any manner with the name of the 1st defendant as candidate of the 2nd defendant for the Senate for Taraba South Senatorial District for the 2015 General Election
AND FOR FURTHER ORDERS (S) as this Honourable Court may deem fit to make in the just determination in the circumstances.
The Originating Summons had in support an affidavit of 25 paragraphs and certain documents among which are the Electoral Guidelines for Primary Election 2014 of the Peoples, Democratic Party and the Constitution of the Peoples Democratic Party. The Originating Summons is further accompanied with the written address of counsel as at the date of filing on the 31st December, 2014. See pages 142 157 of record.
At the sitting of the 3rd February, 2015 at Abuja, the Federal High Court by an order issued the same date, caused the suit that is, the Originating Summons to be transferred to the Federal High Court, Jalingo Tarba
State wherein, at the Registry, the Suit was assigned with No. FHC/TAR/SC/5/15 and thereafter caused the process to be served on the defendants.
Upon service of the Originating Summons, the 1st and 2nddefendants, now respondents filed their separate conditional appearance, and thereafter filed their separate and distinct Motion on Notice, that is Motion on Notice No. FHC/TAR/M/28/2015 filed on the 30th August, 2015for the 1st defendant/respondent and Motion on Notice No. FHC/TAR/M/27/2015 filed 30th April, 2015 for the 2nd Respondent. The Appellant in turn filed his response only in respect of the application by the 2nd defendant (respondent). In both applications, the 1st and 2nd defendants (respondents) urged on the court below to strike out or dismiss the Originating Summons for being grossly incompetent or null and void based on the grounds set out in the respective Motions on Notice, the affidavits in support of the two Motions and their written addresses. Upon hearing of the two applications on the 20th May, 2015 and the response of the appellant, the court below, in 2 (two) separate Rulings delivered the same day on 17th September, 2015 declined jurisdiction and upheld the objection of the 1st and 2nd respondents.
Peeved by the court below the plaintiff by the Notice filed on the 22nd October, 2015 lodged an appeal to this court on 7 (seven) grounds as contained in the record of appeal at pages 459 to 466. The record of appeal as has since the 16th November, 2016 been transmitted to this court.
In the briefs of argument filed and exchanged between counsel 4 Issues as formulated by the Appellant in his brief filed on the 23th December, 2015 at pages 6 7 were agreed upon and indeed adopted by the 1st and 2nd respondents in their joint brief of argument filed on the 9th February, 2016 at paragraph 5.2 of the brief as issues for determination in this appeal savethe point(s) of Preliminary Objection raised and is subsumed in the respondents brief of argument in opposition to this appeal at pages 4 12 of the said brief.
A separate Notice of Preliminary Objection to the appeal which has the sameeffect was filed along with the brief of argument for the 1st and 2nd respondents on the 9th February, 2016. The 3rdRespondent (INEC) has not filed any brief of argument and they were not represented by counsel on the date the appeal came up for hearing.
Mr. E. A. Ibrahim Effiong at the hearing of the appeal on the 23rd May, 2016 invited our attention to his Notice of Preliminary Objection filed both as a separate process and as a process already incorporated into the brief of argument for the respondents and argument canvassed thereto, and he adopted same to urge on the court to uphold the Objection and strike out the appeal for reasons canvassed in their brief of argument.
Mr. Abbass Ajiya, learned counsel for the appellant in his response to the Preliminary Objection referred us to the reply brief filed by them 9th March, 2016 in opposition and to arguments canvassed therein in urging us to discountenance the Preliminary Objection.
Being the process which seeks to terminate this appeal in lamine, there is the need to first examine the complaints arising from this objection.
The sole objection is itself predicated on the competence of the appeal and this is how the 1st and 2nd respondents couched it in their Notice of Preliminary Objection, thus:-
The entire Appeal is a mere academic exercise in that even if the issues raised therein are resolved in favour of the appellant the fortune of the appeal would not change in the face of the unappealed findings in the decision emanating from the objection of the 2nd Respondent thus rendering the appeal grossly incompetent.
PARTICULARS OF THE SOLE GROUNDS
i. The 1stand 2nd Respondents filed separate and independent Applications challenging the jurisdiction of the Lower Tribunal on 9 and 5 grounds respectively as could be discerned from pages 260-319 and 320-376 of the printed Record.
ii. In the application of the 1st Respondent, 7 issues were formulated from the 9 grounds and in that of the 2ndRespondent 5 issues were formulated from the 5 grounds. We refer this Court to pages 273 and 331-332 of the Printed Record.
iii. The Lower Court upon hearing the Applications reformulated two issue for determination in respect of the Objection of the 1stRespondent and 3 in respect of that of the 2nd Respondent. See pages 421-422 and 450 of the Printed record.
iv. The Lower Court on 17th September, 2015 delivered two separate and distinct rulings as could be gleaned from pages 399-430 (ruling on the objection of the 2nd Respondent) and pages 431-457 (Ruling on the Objection of the 1st Respondent).
v. The two rulings supra constituted two separate, distinct and independent decisions.
vi. The Appellant filed a sole Notice of Appeal without stating the decision appealed against and in fact from the Notice and grounds of Appeal, it could safely be referred that the appeal is limited to the decision arising from the Objection of the 1st Respondent only on the grounds infra:
Learned respondents counsel formulated just one (1) issue as arising for determination from those grounds of objection thus:
Whether in the face of damaging specific findings of the Court below against the Appellant is the objection of the 2ndRespondent which this appeal is unrelated especially to the effect that this appeal is not rendered academic?Arguments canvassed in support of the lone issue can be seen at pages 7 12, paragraphs 4.1 -4.16 by which learned counsel for the 1st and 2nd respondents alluded to the 2 (two) separate applications made by them at the court below. Be seen at pages 252 319 and 320 376 of the printed record. He noted that the court below gave two separate and distinct rulings in respect of those two applications and he referred us to the two ruling at pages 399 530 and 431 457 of the printed record. Learned counsel argued that all the grounds of appeal as highlighted in particular (iv) of the particulars of grounds of objection arose from the decision or ruling given in respect of the objection of the 1st respondents alone and thereby leaving the decision and the findings contained therein in respect of the objection of the 2nd respondents as still extant. He referred in particular to the findings of the court below at pages 428 429 of the record which he said were not appealed against. These findings he said, are that the suit disclosed no locus standi, cause of action and that the matter was not justiciable. He contended that this finding of which there was no appeal was peculiar to the objection of the 2nd respondent only. He went further to submit that where the findings of a court are not specifically challenged the same remain undisputed and is deemed admitted citing in support the decision in N.B.C.I. Vs. Integrated Gas (2005)2 SCM 67, 205; Dabo v. Abdulahi (2005) 4 SCM 52, 69; Olukoya v. Asheru (20060 7 SCM 175, 188; Standard Nig. Entr. Vs. NBCI (2006) 4 SCM 194, 2005; Bhojsons Plc V. Kalio (2006) 4 SCM 1 13 14 in consequence of this it is argued that the instant appeal even if it succeeds will have no meaningful impact on the appellant who derived no benefits from the ruling so far as there was no appeal over the findings of the same court in the second ruling. To this end he said the appeal was not only academic and hypothetical but frolicsome. He cited a number of authorities on that point among which are: (i) Plateau State V. Attorney General of the Federation (2006) 3 NWLR (Pt. 967) 346, 419. (ii) Adeogun V. Fashogbon (2009) All FWLR (Pt. 449) 531, 552 553,. In such circumstance, it is furtherargued, the court will not act in vain to entertain questions of academic nature lacking practical utility value. He relied on Nwora V. Nwebueze (2012) All FWLR (Pt. 613)1824. The appeal, it is further argued, being academic in nature, this court lacks jurisdiction to determine academic and hypothetical questions, relying on Ikyenya Vs. PDP (2012) All FWLR (Pt. 628) 837, 853. Such question or appeals he said should be discountenanced by the court. He relied on quite a number of authorities including (i) Ugba V. Suswan (2014) All FWLR (Pt. 748) 8 25, 855 (ii) Audu V. Attorney General of the Federation (2013) All FWLR (Pt. 667) 607), 024. (iii) Abe V. University of Ilorin (2013) All FWLR (Pt. 697) 682, 698 (iv) Oke V. Mimiko (2013) All FWLR (Pt. 693) 1853, 1879 (v) Inec V. Atuma (2013) All FWLR (Pt. 697) 619, 633.
He argued further and submitted that a court is competent when:-
(a) It is properly constituted.
(b)The subject-matter of the case is within the jurisdiction of the court and there is no feature in the case preventing the court from exercising its jurisdiction, and
(c) The case comes before the court duly initiated by due process and upon fulfillment of any condition precedent.
He cited: Hamza & Anor. Vs. Sani & Ors (2015) 1 SCM 174, 191; APGA Vs. Anyawu (2014) All FWLR(Pt. 735) 243, 263; Emenike V. PDP (2012) All FWLR (Pt. 640) 1261, 1289; Akpangbo-Okadigbo Vs. Chidi & Ors. (2013) 3 SCM 141, 202 to urge us to strike out or dismiss this appeal on this ground.
In the reply brief filed on the 9th March, 2016, the appellant questioned the competence of the brief of argument filed by the Respondents stating that the brief was in excess of 3o page limit as ordained or allowed by the Rules under Order 18 Rule 6 (a0 of the Court of Appeal Rules, 2011, that is, putting together 1st and 2nd respondents brief of 28 (twenty eight) pages and the brief containing the list of legal authorities filed by them consisting of 3 (three) pages. He argued that this failure of compliance with the rules meant that no Brief of argument was filed by the 1st and 2nd Respondents, the consequence of which is that they cannot be heard on oral argument and they are deemed to have admitted the truth of the contents of the brief filed for the Appellant. He cited in support the decision in Dilibe V. Nwakozor (1986) 5 NWLR (Pt. 41) 315, 333; Oyesoh V. Nnebedan (1992) 3 SCNJ129, 153; Nwokoro Vs. Onume (1990) 3 NWLR (Pt. 136) 22, 32; Unity Bank Plc. Vs. Edward Bouari (2008) 2 SCNJ 116.
In response to the specific complaints raised by the preliminary Objection, the Appellant or his counsel canvassed the lone issue distilled by him and that is, whether the Preliminary Objection as argued by the Respondents, has merit?
It is argued that the 2 (two) rulings delivered at the court below at pages 399 and 431 of the record of appeal were products of the same Motion Number i.e FHC/TAR/M/24/15 in the same suit No. FHC/TAR/CS/5/15 both of which were delivered on the 17th September, 2015 by the same Judge, Hon. Justice D. U. Okorowo.
To further buttress this point learned counsel referred to the Notice of Appeal in Appeal No. CA/YL/105/15 to submit that the appeal is against the decision of Hon. D. U. Okorowo ,Judge dated the 17th September, 2015 in Suit. No. FHC/TAR/CS/5/15.By reference to part 2 of the same Notice of Appeal it is also contended that the Appeal is against the whole decision of D. U. Okorowo delivered on 17th September, 2015 in Suit. No. FHC/TAR/CS/5/15.
Learned appellants counsel therefore urged us not to succumb to the arguments canvassed by counsel for the respondents in their brief stating that those submissions bordered on technicalities but urge on the court to deal with the substance in order to achieve substantial Justice.
Before I take on the issues raised by the Preliminary Objection, there is equally a fundamental question which throw up a challenge that because of the seeming or apparent defects in the brief of argument filed by the Respondents, there was no brief at all by them and that this court should discountenance that defective brief. I will first address this point.
Going by the records it is discernible that the 1st and 2nd respondents filed their brief of argument on the 9th February, 2016 and the same brief dated the 4th February, 2010 runs into 28 pages.
By another process filed on behalf of the 1st and 2nd respondents on the same 9th February, 2016, captioned list of authorities, in respect of the same appeal, that is, Appeal No. CA/YL/105/2015, between the same parties, is a document of 4 pages.
Order 18 rules 3(1) and (2) of the Rules of this court on the Forms and Contents of a brief, provide thus:-
3-(1) The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are, in the Appellants view, the issues arising in the appeal as well as amended or additional grounds of appeal.
(2)Where possible or necessary, the reasons in the brief shall also be supported by particulars of the titles, date and pages of cases reported in the Law Reports or elsewhere including the summary of the decision in such cases, which the parties propose to rely upon. Where it is necessary, reference shall also be made to relevant statutory instruments, law books, and other legal journals
It is clear that by this provision, the document or process captioned list of authorities, whether subsumed in the main brief of argument or not are still part of the brief, so far as it is intended to support arguments or submissions contained in that brief which in any case shall not exceed 30 (thirty) pages. See order 18 rules 6 (a).
The process filed on the 9th February, 2016 and captioned List of Authorities run into 4 pages and these pages when added to 28 (twenty-eight) pages that is the number of pages contained in the 1st and 2nd respondents brief of argument will run into 32 pages or thereabout which is in excess of the 36 page limit allowed by the rules of court.
The consequence of filing a brief of argument in excess of 30 page limit is the provision which empower the registry of this court to refuse to accept such briefs upon presentation of same for filing. See Order 18 rule 6 (c) of the rules of this court.
Now, the brief of argument for the 1st and 2nd respondents like the brief of argument for the appellant are now before us in this court. It escaped the eagle eyes of the registry albeit undeservedly and has gone beyond the registry, and it is now before us, in this court. Should this court at this point in time ignore this brief as argued by the appellant or his counsel in their brief? Not too long ago this court was confronted with a situation similar to this and this is what I said at that time, in the case of Iorundij Atau Azanke&Anor V. Emmanuel Machoko (unreported), a decision delivered on the 26thMay, 2016 in Appeal No. CA/YL/48/2014 and I quote in Extensor, thus:-
Appellants brief of argument before the court, unarguably, runs through 36 pages contrary to the stipulation in Order 18 rule 6 (a) of the rules of this court.
Leave was neither sought nor obtained as at the date the brief was filed on the 7/12/2015. There is nothing on record to so suggest that this court by an order has directed the appellants to file their brief of argument in excess of 30 page format as provided for in the rules. This, thus is a case of non-compliance with the mandatory provisions of the Rules. But rules of court are meant to be obeyed and not made for the sake of making them as held in Williams V. Hope Rising Voluntary Funds Society (1982) 1 2 SC; African News papers Ltd V. Owososeni (1995) 2 NWLR (Pt. 375) 110; Opera V. Dawell Schuhom-Berger Nig. Ltd. (1995) 4 NWLR (Pt. 390) 440. There is a purpose for making the rules and that is, to check verbosity and to ensure that brief of argument are not unwieldy long winded and cumbersome. Failure of compliance with rules of court may not invalidate proceedings or court process see order 20 of the rules of court but such non-compliance may invite sanctions in other cases as for instance order 18 rule 6 (c) of the rules of this court provide that every brief which fail to comply with the page limit and page size requirements shall not be accepted by the Registry, for filing. This provision of the Rules cast on the Registry the duty of having to scrutinize all documents or papers especially briefs of argument submitted for filing to ensure compliance. As a clearing house, the registry must not shirk in its responsibilities. It has a duty to sieve the chaff from the grain and refuse to accept all or any Brief of argument for non-conformity with set standards at the point of filing. This is a wake up call.
Now, Appellants briefs of argument of 36 pages, having been accepted and filed at the registry, notwithstanding the provisions of the rules i.e. Order 18 rule 6 (a), and has come before us at this level should the court at the point of hearing discountenance same on account of non-compliance with the rules? I do not think it is the right thing to do, at this stage of the proceedings, to reject briefs of argument of counsel for the Appellant at the point of hearing his case. Rather, this court guided by the principle of fair hearing will be inclined to overlook any inelegance or flaws noticeable in the appellants brief of argument and do substantial justice to it as it has a duty to examine the arguments contained therein and decide the case on the merits. See: Obiora V. Osele (1989) 1 NWLR (Pt. 97) 279; Ekpemupolo Vs. Edremoda & Ors LPELR 1089 (SC).
I still want to stand by those conclusions in the case referred to above and I think my conclusion or opinion there is relevant to the issue on hand in this appeal case hence I adopt same. I do not think it is wise thing to do, to ignore issues raised by the respondents in the Notice of Preliminary Objection. There is need to examine their claim by that objection.
The 1st and 2nd respondents indeed respectively filed their two separate Motions upon being served with the appellants Originating Summons. The Motion dated the 30th August, 2015 and filed on behalf of the 1st respondent on the same date was directed at the Jurisdiction of the court below to entertain the claim. So is the Motion dated and filed on the 30thApril, 2015 on behalf of the 2nddefendant. The court below heard the 2 (two) applications the same day and reserved ruling in each one of them. In the ruling (s) delivered on 17th September, 2015 In Suit/Motion No. FHC/TAR/M/24/2015 the court declined jurisdiction hence this appeal.
I have given thought to all the submissions made by counsel and the authorities cited by them. The gist of the Objection taken lie in the fact that the appeal before us is a sheer waste of time and an exercise in futility such that even if the appeal succeeds, the success will not confer any utility value on the appellant hence the appeal is merely of academic and hypothetical, so far as the appeal over or against 1 (one) ruling or decision leaves the other or the 2nd ruling still extant.
I know that the courts over time have refused to indulge and deal with academic and hypothetical questions rather the courts are established to deal with matters in difference between the parties. This is so because academic or hypothetical questions do not help in the determination of live issues in a matter. They are merely frolicsome, not touching or affecting the very tangible and material aspect in the adjudication process. See: Okotie-Eboh V. Manager (2004) 18 NWLR (Pt. 905) 242; Bangboye V. University of Ilorin (1999) 10 NWLR (Pt. 6 22) 290; Owners of MV. Arabella V. NAIC (2008)11 NWLR (Pt. 1097) 182 or (2008) 34 NSCQR (Pt. 11) 109; Adeogun V. Fashogbon 149 (SC); Yusuf V. Tolushi (2008) 14 NWLR (Pt. 1107) 237 or (2008) 6 7 SC (Pt. 1) 164.
The question therefore is whether the current appeal is merely academic or hypothetical as being canvassed by the respondents in the light of the ruling at pages 399-430 of the printed record over which it is argued there is no appeal? This is the contention of counsel to the respondents. It is claimed that the current appeal does not relate to the ruling referred to above but the ruling at pages 431-457 of the printed record in respect of the Motion on Notice filed by the 1st respondent
There is the need therefore to take another look at the Notice of Appeal so as to discover to which ruling or decision, the appeal relates.
The Notice of Appeal state at page 459 of the printed record thus:
NOTICE OF APPEAL
TAKE NOTICE that the appellant being dissatisfied with the decision of the Federal High Court of Justice of Taraba Judicial Division, Jalingo, as contained in the ruling of Honourable D. U. Okorowo, Judge dated the 17th day of September, 2015 in Suit No. FHC/TAR/CS/5/1, do hereby appeal to the Court of Appeal, holden at Yola, upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the relieves (sic) set out in paragraph 4.
AND the appellant further state that the names and addresses of the person directly affected by the appeal are those set out in paragraph 5
I stop here for now. The decision appealed against unarguably, is the Ruling:
(i) Of Honourable D. U Okorowo, Judge.
(ii) Dated or delivered on the 17th day of September, 2015
(iii) In Suit No. FHC/TAR/CS/5/2015
(iv) In Motion No. FHC/TAR/M/24/2015
The decisions referred to earlier at pages 399-429 and pages 431 457 both have and retain the characteristics listed as in (i) (ii) (iii) and (iv) above. And that is not all. The appeal is against the whole decision and this can be discerned from the second part of the Notice of Appeal captioned: PART OF THE DECISIONS OF THE LOWER COURT COMPLAINED OF: The word Decision as constitutionally defined as Section 318 (1) of the 1999
Constitution as amended means:
any determination of that court and includes Judgment; decree, order, conviction, sentence or recommendation
See Dr. Kubor & Anor Vs. Dickson &Ors (2012) 10 11 SC 1; Garuba V. Omo Khodion& 13 Ors. (2011) 6 7 .(Pt. V) 89.This definition thus is wide enough to accommodate any ruling or rulings of court as in the instant case on appeal. The appeal by the appellant as presented by the Notice of Appeal under reference is not an appeal againstjust1 (one) decision but an appeal against the decisions of the Lower Court andifI may add, it is an appeal against the decisions delivered by D. U. Okorowo, the Presiding Judge of the Federal High Court of Justice, Taraba State Judicial Division, Jalingo, on the 17th September, 2015 in Suit No. Motion FHC/TaR/Cs/5/2015 in FHC/tAR/M/24/2015.
Every Notice of Appeal constains what the subject matter of the appeal is all about. See: Dyagyadi V. INEC (No. 2) (2010) 18 NWLR (Pt. 224) 154 (SC). The subject-matter or areas addressed in this appeal and to which a complaint has been lodged is with respect to the Issues, among others of:
i. Service of Originating Process
ii. The issue of non-compliance with the provision of Section 97 and 98 of the Sheriffs and Civil process Act ..
iii. The Issue of the Plaintiffs/Appellants lack of locus standi at the time his claim was filed and/or his claim not having disclosed any cause of action.
iv. The issue or question of the justiciability of the action or claim.
I have read the ruling of the Court below at pages 399 -430 of the printed record and I can say without equivocation that issues or the subject matter covered by the Notice of appeal are the same or similar subject areas or matters over which the court below has also addressed the ruling delivered by it on the 17th September, 2015 which is at pages 399 430 of the printed record, for instance the court at pages 421 429 of the printed record raised and addressed 3 (three) fundamental questions as they relates to (a) Plaintiffs/appellants Cause of Action, I.e- whether the Suit filed by him disclosed any cause of action as to confer on the court the jurisdiction to entertain the claim (b) the issue of the locus standi of the plaintiff, to initiate the suit and (c) the Justiciability of the Suit instituted by the plaintiff /appellant.
To contend as the respondent did in their argument in support of the Preliminary Objection that this appeal does not relate to the ruling at pages 397 429 of the record is to my mind a misconception of the issues raised in the Notice of appeal and for this I should overrule the preliminary Objection and dismiss same.
But granted that the appeal relate to one (1) decision (ruling) only and not the other (ruling) as claimed, how then does it affect the validity of the Notice to which this appeal relate? That is the question: The ruling over which there is no appeal remain as a subsisting and valid decision and therefore binding on the parties to it even if the current appeal succeeds. I therefore find no merit in this Preliminary Objection which is hereby dismissed.
I will now consider this appeal on the merits. Before now reference was made to the briefs of argument filed on behalf of parties on both sides including the reply brief filed on the 9th March, 2016. In the brief by the appellant 4 (four) issues were distilled at page 4 as follows:-
1. Whether in the circumstances of the Suit of the Appellant any of the provisions of the rules of the Lower Court or Sheriffs and Civil process Act regarding the issuance and service of originating process was violated?
2. Whether in the determination of locus standi or cause of action it is permissible to consider evidence that is extrinsic or extraneous to the originating process?
3. Whether in the circumstances of the default of defence/response to the Originating process filed by the Appellant he is entitled to the Judgment of the lower court in terms of the indorsed relieves? (sic)
4. Whether in the determination of the application of the 1st and 2nd respondents, the lower court glossed over the fundamental issues, decisive evidence and crucial legal submission?
By the brief of argument filed on9th February, 2016 the 1st and 2nd respondents adopted all the 4 (four) issues formulated by the appellant. It follows therefore that this appeal will be decided on the 4 (four) issues formulated by the appellant in his brief of argument and this is what I now proceed to consider arguments proffered on those issues:
Whether, in the circumstance of the Appellant, any of the provisions of the Rules of the lower court or Sheriffs and Civil Process Act, regarding the issuance and service of Originating Process was violated? (distilled from grounds 1 and 2 of the Notice of appeal)
In addressing this question in his brief of argument at pages 7-10, learned counsel for the appellant drew the attention of the court to the fact that the process by which the Suit was argued was filed or was issued at the Federal High Court in Abuja and to be served on all defendants/respondents in Abuja whose address of service were also endorsed on the writ. That service had not been effected ass the Judge, Presiding at the Abuja Division of Federal High Court, A. R. Mohamed caused the Summons to be transferred to Taraba Division of the Federal High Court on the 23rd February, 2015, where service was now effected on the defendants/respondents, that upon the process now being served the 1st and 2nd respondents entered appearances and filed a motion on Notice No. FHC/TAR/M/28/15 dated the 30th April, 2015wherein the objection was raised alleging that the appellant did not seek and obtain leave of the Federal High Court sitting in Jalingo to action and serve the process in Abuja.
Before us it is argued that leave to issue an originating process was not necessary in the circumstances of this case. That leave is only necessary where service is to be effected outside the territorial limit of the court. It is argued that the fact of the transfer of the Suit to Taraba Division of the Federal High Court did not invalidate its issuance by the Abuja judicial Division of the Court which still remain as one and the same court. He cited and relied on Egbe v. Areka (1988) 7 SC (Pt. 3) 98, 11.
Learned appellants counsel further argue that assuming that the issuance of the Writ became invalidated by reason of the transfer of the Suit, then there would be no need to seek leave of the recipient Division to serve the Writ within the Dispatch Division. in reference to section 19 (1) of the Federal High Court Act, Cap F. 12 CFN 2004.He submits further that the Federal High Court was established to exercise jurisdiction throughout the Federation, consequently leave of the Court below was not necessary to initiate and issue and serve a Writ within the Federal Republic of Nigeria and the Court below was in error to hold otherwise.
Learned counsel further submits that it amounts to misdirection in law for the Court below to invoke a general rule or law or practice to displace a distinct or particular authority vested by a statute, in obvious reference to Section 96 (1) (2) of the Sherriff and Civil Process Act Cap. S. B. Law of the Federation of Nigeria, 2004 vis avis Section 19(1) of the Federal High Court Act Cap. F12 LFN, 2014. He cited and relied on: Ezeadukwu V. Maduka(1977) 8 NWLR (Pt. 518) 835, 647.
By further reference to order 6 of the Federal High Court (Civil Procedure) rules 2009, he argued that there is no provision in the rules which make the grant of leave as a condition before issuance of a Writ by one Division of the Court before service in another Judicial Division.
In a further submission by him it is contended that the court below in the course of its ruling raised an issue of plaintiffs non-compliance with the provisions of Section 97 and 98 of the Sheriffs and civil Process Act. He argued that it was wrong of the Court to do so on its own and proceed thereat, and without giving either of the parties a hearing on the point to invalidate the summons and thus striking out the Suit. It is argued that neither the Plaintiff/Appellant nor defendant/respondent raised issue as regards Section 98 and 98 of the Sheriffs and Civil Process Act. He argued that by the Court suo motu invoking those provisions, it was making a case different from the one the parties had placed before it hence the need arose to allow the parties to address on it in line with the principle of fair hearing. He cited and relied on the following cases: Concord Press (Nig) Ltd V. Olutok (1999) 9 NWLR (Pt. 6220) 578, 590; Dalek V. Ompadec (2007) 2 SCNJ 208, 242; Ezeonwu V. ONYECHI (1996) 2 SCNJ 250, 269.
Learned counsel submits further that so far as leave was not required to serve the Originating process, it follows that of Sections 97 and 98 of the Sheriffs and Civil Process Act was not applicable to this case. That it was fatal for the court below to rely and act on same in itsdecision or ruling. He argued that the court ought to have confined itself to issues brought before it, and he relied on: Akinfotarn V. Akinnola (1994) 4 SCNJ (Pt. 1) 30, 50; Onyamaeh v. Ogbuchulum (1996) 4 SCNJ 237, 244; Ckukwuma V. Federal Republic of Nigeria (2011) 5 SCNJ 40, 71; Kim vs. the State 91992) 4 SCJ81, 92, learned appellants counsel urged on the court to resolve Issue 1 in their favour.
For counsel to the respondent arguing par contra relative to issue No. 1, it is contended that the said issue No. 1 was restrictive in scope and thus could not have been derived from ground 2 of the grounds of appeal. Learned counsel urged on the court therefore to hold that Issue 1 relate to ground 1 only and that ground 2 be deemed as abandoned and that same be struck out. He relied on Victor V. State (2014) Alims (Nig.) LtdV.UBA 2013 All FWLR (Pt. 692) 1756, 1763; Eco Bank (Nig.) Plc. V. Gusan (2013) All FWLR (Pt. 699) to urge on the Court discountenance any argument relating to that ground citing Shuadu V. the State (2014) All FWLR (Pt. 750) 1381, 1391 and NBC Vs. Ubani (2014) All FWLR (Pt. 718) 803, 835.
In response to the issue of whether leave of the court below was required for issuance and for service of the Originating Summons, counsel has argued stating that the Sheriff and Civil Process Act, cap S. 6 Laws of the Federal of Nigeria was a relevant pieces of legislation in respect of Originating processes issued and for service outside the state, that the Act applies to Federal High Court and he relied on the case of Owner of the MV Arabella vs. N.A.I.C(2008) All FWLR (Pt. 443) 1208, 1226-1230.His submission, in a nutshell, is that in absence of leave first being sought and obtained to serve the Summons or Writ outside jurisdiction, any service effected with the Writ was improper to render the suit incompetent hence court below was right in striking out the originating summons. Learned respondents counsel contended that a similar argument or submission was made at the Court below but the appellant was mute about it to suggest that he admitted it and thus urged on the court to so hold. He relied on Onmeje V. Odumu (2011) FWLR (Pt. 600) 1328, 1352UgboajaV. Akintoye Sawemino (2008) All FWLR (Pt. 4390 407, 418.
In the reply brief filed for the appellant he argued that issue No. 1 was not only derived from ground 1 but from ground 2 as well of the grounds of appeal following the ruling of the Court below. He argued that the 2 (two) grounds arose from the ruling in relation to the provisions of Sheriffs and Civil Process Act, and that it was proper to raise a single issue from the two grounds. He cited and relied on Yusuf V. Akindipe (2000) 5 SCNJ 128, 134.
The Appellant, he argued, has that the appellant has not violated any of the provision of the said Act as alleged . i. e. Section 96, 97 and 98 of the Sheriffs and Civil Process Act which he says are not applicable to this case in that the Originating process was filed and or issued at Abuja and same to be served in Abuja.
Issue of service is a fundamental requirement in the adjudicative process. So important is it that the absence of same would lead to an entire proceedings or a suit being voided as a nullity. This is so because by dint of service of a court process the party on the other side is put on Notice of the nature and character of the suit that wait him, and thus calling on him to get set and be prepared for the impending case or Suit. Issue of service is thus a condition precedent to the hearing of any given case to which that service or Notice relates. It is the service of the relevant process that confer on the court the jurisdiction to hear the matter in relation to that person. See: Alhaji Dan Rausa& Co. V. Panatrade Ltd (1993) NWLR (Pt. 298) 204 or (1993) 7 SCNJ 100; Kida V. Ogunmol (2006) 13 NWLR (Pt. 997) 377; Africa C. B. Pl. Vs. Lasada Nig. Ltd 919950 7 NWLR (Pt. 405) 25; Uchandu vs. Ogboni (1999) 5 NWLR (Pt. 6033) 337 or (1999) 4 SC (Pt. 11) 1; Eimskip Ltd V. Exquisite Industries (Nig.) Ltd. 92003) 4 NWlR (pt. 809) 88 (005) 1 SC (Pt. ii) 94; Aken Consult V. Ukey (1981) 1 Sc 6, 226; Okoye & Anor. V. Centre Point Merchant Bank (2008) 15 NWLR (Pt. 1110) 335 SC. Tsokwa Motors (Nig.) Ltd Vs. UBA Plc. (2008) 2 NWLR (pt. 1671) 347. The duty on the Plaintiff or claimant seeking to initiate a Suit becomes even more compelling when the law require of him to first seek and obtain leave of court preparatory to the Originating Summons being issued and served and this, I think is the live issue in this case on appeal. The court below delivering its ruling on the application filed by the respondents raising objections on the competence of the Suit before it took the view that since leavewas not sought and obtained and the provisions of Section 96, 97 and 98 of the sheriffs and Civil Process Act not having been observed, then the Suit initiated by the appellant was incompetent.
Before I go any further you will permit me my lords to pause here for a while and pass a few remarks by way of observation on the submission made by counsel to the respondent that issue No 1. Was not derived from ground 2 of the Notice of appeal as alleged and to that extent the said ground 2 has been abandoned and same should be struck out.
In his brief of argument the appellant at page 7contends that Issue No. 1 was formulated from 2 (two) grounds in the Notice and Grounds of appeal, that is to say from grounds 1 and 2. The said Issue No. 1 is presently being considered but there is the need to look at grounds 1 and 2 of the grounds of appeal again. Ground 1 (one) along with the particulars state thus:-
The Honourable trial Court misdirected itself when without adverting his mind to the facts that the originating process was instituted at and duly issued by the Abuja Judicial Division of the Court and consequently transferred to the Taraba Judicial division proceeded to hold.
I have perused the record of this Court and I find no where the plaintiff initiated any application or leave to issue processes in this case the noncompliance is a fundamental vice and goes to the root of the action. The originating Summons ant other processes field with it are invalid, defective and ought to be set aside as this court has no jurisdiction to entertain it
PARTICULARS OF THE ERROR
1. The originating summons was filed in and issued by the Abuja Judicial division of the Court
2. At the time the originating process were issued the addresses for service indorsed therein are within the Federal capital Territory, Abuja.
3. Section 19 (1) of the Federal high Court Act (Supra0 vests jurisdiction throughout the Federation on the Court.
4. Section 96 (1) & (2) of the Sheriffs and Civil Process Act, Cap. S6, Laws of the Federation of Nigeria, 2004, did not prescribed or provide for the need to seek or obtain the leave of the court to serve the originating process within any part of the Federation.
5. By the Rules of the Honourable trial court, leave is only necessary where the service of the originating process is to be effected outside the territorial limit of the Federation.
GROUND 2 (TWO) STATE THUS:
The honourable trial court misdirected itself in its decision thereby occasioning grave miscarriage of justice, when it suomotu and without inviting the parties to address it, raised the issue of noncompliance with the provisions of Section 97 and 98 of the Sheriffs and Civil Process Act (Supra) and resolved same thus:
Both Section 97 and 98 of the Sheriffs and Civil Process Act are requirement of the Statute which prescribes conditions for issuance of the Writ. Failure to comply with the provisions make writ invalid and void. The action based on them is therefore incompetent and liable to be struck out
PARTICULARS OF THE ERROR
1. None of the Respondents complained about the fact that the originating process were not endorsed as stipulated in Section 97 and 98 of the sheriffs and Civil Process Act (Supra).
2. It is an elementary and fundamental principle of the determination of dispute between the parties that the Judgment must be confined at the Court setting up a new case for the parties.
3. The court must afford parties the opportunity of being heard on new issues raised suo motu.
4. It is not proper for a court to embark upon a fact finding investigation that leads to the discovery of facts.
5. Section 97 and 98 of the Sheriffs and Civil Process Act (Supra) do not apply to the case before the trial Court.
6. The Appellant was denied the right to be heard on the point raised by the trial Court.
A comparative reading of ground 2 of the grounds of appeal and Issue No. 1 will reveal that the latter i.e issue No. 1, contrary to the view held by respondents counsel, is indeed related to the complaint in ground 2 of the grounds of appeal by which, the question of the relevance and applicability of Sections 97 and 98 of the Sheriffs and Civil Process Act was the main focus of complaint. Issue 1 which state:Whether, in the circumstance of the Appellant, any of the provisions of the Rules of the lower court or Sheriffs and Civil Process Act, regarding the issuance and service of Originating Process was violated, embraces the two grounds of appeal under reference and to that extent, ground 2 of the grounds of appeal cannot be said has been or was abandoned as argued by the respondents or their counsel.
Issue No. 1 has been couched in such a manner or language that transcends and cut across the provisions of the Act and the rules relevant to the issue on hand.
The sheriffs and Civil Process Act cap S.6 laws of the Federation of Nigeria 2004 at Sections 96, 97 and 98 are provision with regards to;
i. Service of the Writ in any part of the Federation
ii. Endorsement of Writ meant for service outside a state
iii. Writs which should be endorsed and marked as concurrent.
I will endeavor to reproduce those Sections in full thus:-
Section 96 (1) A writ of summons issued out of requiring the defendant to appear at any court of a State or the Capital Territory may be served on the defendant in any other State or the Capital Territory
(2) such service may, subject to any rules of court which may be made under this Act, be effected in the same manner as if the writ was served on the defendant in the State or the Capital Territory in which the writ was issued
Section 97.Every Writ of Summons for service under this Part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by law of such State or the capital territory, have endorsed thereon a notice
Section98. A Writ of Summons for service out of the state or the capital Territory in which I 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.
As indicated before, Section 97 and 98 are provisions requiring the endorsement of the originating process. Thus the Writ of summons or any other originating Process being issued and directed for service in a state other than the state issuing it shall have on the writ, the appropriate endorsements as prescribed at Sections, 97 and 98 respectively. From the wordings of the two provisions, compliance is mandatory and non-compliance will lead to the writ or service of it as voidable. See: Odua Investment Ltd Vs. Talabi (1997)10 NWLR (Pt. 523) 1 (SC). Same goes for the Writ or other Originating Process for which leave of court or Judge was required before issuance and service outside jurisdiction. Failure to obtain leave to serve on a defendant outside jurisdiction of court renders the issuance of the Writ and service as irregular and can be set aside by defendant provided that he took no steps before approaching the court to set aside the writ. See: Odua Investment Ltd V. Talabi (supra); Korum Ltd Vs. Intra. Trust.(2010) LPELR 4408 (CA).
The big question here is whether the appellant has not jumped the gun when he failed to seek leave of Court at the point of issuance and service of the originating summons?
Learned counsel for the appellant in his brief has argued that by the peculiar facts of this case, it was not necessary to seek leave to issue and serve the originating process given the facts that:
i. The territorial jurisdiction of the Federal High Court extend to cover the entire Nigerian State.
ii. The appellant initiated proceedings at the Federal High Court, Abuja against defendants/respondents who see addresses for service was endorsed on the writ, for service in Abuja, Federal Capital Territory.
The Federal High Court was established by virtue of the Constitutional provision at Section 249 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Federal High Court Act Cap, F 12, LFN, 2004 at Section 1. Whereas the Constitution of the Federal republic of Nigeria defines the modus operandi in termsof jurisdiction over the subject matter the court can function which is Section 251, it is the Federal High Court Act that delimits the territorial scope or extent over which the court can operate. By Section 19 (1) of the Act the Federal High Court was conferred with and has jurisdiction to operate and carry out its functions throughout the Federation. Thus the whole of the territory of Nigeria State constitute one (1) Constituency, so to say, over which the Federal High court can function and the Act having thus delineated the operational areas for the Federal High Court is it within the legislative intent for the litigant to first seek leave of that Court to enable him, serve a Writ or any other Originating Process at a place in Federation other than the place the writ was issued? That is the question.
The Federal High Court (Civil Procedure) rules, 2009 make provisions under order 6 on how service of court process can be effected. It is in 2 (two) parts. It can be observed that part A which deals with service within jurisdiction has no provision or requirement for application for leave to be made before personal service is effected. See order 6 rule 2. Contrariwise is part B of Order 6 on service out of Jurisdiction. See: Order 6 rules 13, 17, 18 and 31. It follows therefore that leave to issue and serve a Writ is not required where the writ is to be served within jurisdiction.
The term or words outside jurisdiction when used and applied in relation to service of court process relates in my view to the geographical area not within the territory under the control or supervision of the court and for which it is necessary to seek leave of court to effect service outside the jurisdiction of that court. By the combined reading of Section 19 (1) of the Federal High Court Act and Order 6 of the Federal High Court (Civil Procedure) Rules, 2009, leave of the Federal High Court is not required in my view to effect service of an Originating Process within the territory of the Nigerian State, and section 96 of the Sheriffs and Civil process Act does not so state.
I am mindful of the decision in Owners of MV. Arabella (Supra) cited and relied on by learned counsel to the respondent where the apex court considered and construed the provision of Order 10 Rule 14 of the Federal High Court (Civil Procedure) Rules, 1976 to reach conclusion that leave of court was necessary to serve a writ in Abuja, having been issued in Lagos. In the 1976 rules, the area that constitutes outside jurisdiction was neither defined nor fixed.By the existing rules of the Court i.e Federal High Court Civil Procedure Rules 2009, at Part B of Order 6, leave to Issue and serve a writ is necessary where service is to be effected outside the territory of the Nigerian State but that is not the issue in this case on appeal. The issue rather is whether leave of the Federal High Court is required as a condition for service of a writ issued in one location and directed to be served in another location within Nigeria. No such provision is made under part A of Order 6 of the Federal High Court (Civil Procedure) rules 2009 in the light of Section 19 (1) of the Federal High Court Act, 2004. Therefore on the issue of service of the Writ issued at the Federal High Court I am of the opinion that leave of the Court is not a precondition for service within Nigeria.
On the issue of the Endorsement of a Writ issued at the Federal High Court, I think this is a different kettle of fish. Section 97 and 98 of the Sheriffs and Civil Process Act have earlier been referred to but the provision which I think is directly on point is Section 97 of the Act. I am inclined to reproduce same along with the Notice expected to be endorsed on the Writ thus:
Every Writ of Summons for service under this Part out of the State or the 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 Capitals territory, have endorsed thereon a Notice to the following effect (that is to say)-
This Summons (or as the case may be) is served out of the State (or as the case may be) and in the .State (or as the case may be)
The requirement for endorsement of the Writ in the State other that the State it was issued is mandatory and the legislature was very careful in the use of language such that no one is left in doubt and indeed the plaintiff or claimant. He is not expected to seek leave of court to effect the endorsement on the writ with the NOTICE referred to above as if it were seeking leave to serve the writ out of the jurisdiction of the Court. All the same the need for endorsement is profound where the writ is to be served in a state other than where it was issued. The effect of the failure of compliance with the requirement of endorsement is fatal to the validity of that Writ. See:-Owners of MV Arabella vs. N.A.I.C. (supra) The argument advanced by counsel to the appellant that since he filed his Suit in Abuja where defendants (respondents) also reside, there was no further obligation on the appellant in terms of having to endorse the Writ. In other words he argued that Section 97 of the Sheriffs and Civil Process Act was not applicable to his case. Be it noted that the provision of Sheriffs and Civil Process Act apply to all courts throughout Nigeria and this is discernible from the introductory note which herald that legislation. See: Owners of the MV Arabella V. N.A.I.C. (2008) All FWLR (Pt. 443) 1208. The appellant as plaintiff filed his Originating Summons at the Federal High Court, Abuja Judicial Division on the 31stDecember, 2014 wherein he sought a number of reliefs against the defendants now respondent but the court holden in Abuja on the 23rdFebruary, 2015 in its wisdom by an order issued the same date transferred the Suit to Taraba State Division of the same Court for adjudication. See: page 388 of record.
There is no question about the power vested in the court below to effect such transfer of cases as it did. Rather the Act establishing the court and the Rules of court vest in the court the power to make such transfers. Section 22 of the Federal High Court Act, 2004 is authoritative.
The case having thus been so transferred to Taraba Division of the Federal High Court, it will assume jurisdiction as if the matter was originally filed at that court since hearing must commence de novo but I do not think that this act of transfer confer additional obligation on the appellant or his counsel whose writ or summons was filed and issued in Abuja, Federal High Court Division and addressed to defendants at Abuja. In such a situation, the appellant has no obligation to endorse his writ meant to be served within the same Federal Capital Territory. i.e Abuja. Therefore the appellant cannot be punished for an act over which he has no control. To strike out the originating Summons for want of endorsement seem to overlook the facts of the case. In effect I am in agreement with counsel for the appellant that the writ that is the originating Summons filed and issued in Abuja, in the circumstances require no further endorsement of the writ for service in Abuja. Same should not be reason to strike out or dismiss the suit, the same having duly been issued at Federal High Court Abuja for service in Abuja, Federal Capital Territory. See: Madukolu V. Nkemdelim (1962) 1 SCNLR 342; or (1962) All NLR 587; Attorney General of Federation Vs. Gurdian Newspaper (1999) 9 NWLR (Pt. 618) 187 or (1999) 5 SC (Pt. 111) 99 where held that:
The competence of a court in the exercise of its jurisdiction is determined if it is (a) properly constituted with respect to the number and qualification of its membership (b) the subject-matter of the action is within its jurisdiction (c) the action is initiated by due process of the law an (d) any condition to the exercise of its jurisdiction has been fulfilled.
It is apparent that the Summons was not endorsed as prescribed under Section 97 of the Sheriffs and Civil Process Act, but this failure to have the writ endorsed does not invalidate the summons meant for service within Abuja Federal Capital Territory where it was issued. Consequently Issue1is resolved in favour of the appellant.
ISSUE No. 2
The resolution of issue No. 1 on the question of failure of compliance by the appellant with mandatory provisions of the Act, should dispose of this appeal in its entirety without having to consider other related issues namely issues 2, 3 and 4 but for the fact that this court, being an intermediate appellate court, there is the need to consider and rule on those issues albeit briefly: See: Osunwo V. Woko (2011) 17 NWLR (Pt. 1277) 522; Federal Ministry of Health V. Comet Shipping Agencies Ltd (2009) 9 NWLR (Pt. 1145) 193; Okonjode &Ors. v. Njokanmo de & 2 Ors. (1999) 12 SCNJ. 259; Ifeanvichuku (Osandu) Co Ltd v. Soleh Boneh (NIg) Ltd (200) 5 NWLR (Pt.. 656) 332; (200) 3 SCNJ, 18
Issue No. 2 addresses the question: Whether in the determination of locus standi or cause of action it is permissible to consider evidence that is extrinsic or extraneous to the originating process?
Issue No. 3Whether in the circumstances of the default of defence/response to the Originating process filed by the Appellant he is entitled to the Judgment of the lower court in terms of the indorsed relieves? (sic)
Issue No. 4 is Whether in the determination of the application of the 1st and 2nd respondents, the lower court glossed over the fundamental issues, decisive evidence and crucial legal submission?
I will now give the summary of submissions made by counsel on those issues thus:
Learned counsel for the appellant in arguing issue 2 at pages 11-15 of his brief of argument recalled the facts giving rise to this case on appeal and went ahead to submit that the court below was in error to hold that the appellant lacks locus standi to institute the Suit and his case did not disclose any cause of action.
First, on the issue of locus standi he argued that the court below applied the principle of public law in the determination of the question of locus standi here private law applies. It s his contention that in private law, the question of locus standi is merged with the issue of cause of action and he relied on Owodunni V. Registered Trustees (200) 6 SCNJ 399, 417 lines 26 27.
Second, as to what a cause of action is and how it is determined he referred us to Akiba v. Oduntaan (2000) 7 SC NJ 189, 207; Dantata Vs. Mohammed 9200) 5 SCNJ 17. 26;Yususf v. Akindipe (2000) 5 SCNJ 128, 137; Abubaka V. Babaji Oil (2007) 2 SCNJ 170, 194 195.
He argued that to determine the cause of action the materials to look out for are the writ of summons and the averments in the Statement of claim to ascertain the actual grouse of the party and the remedy or relief he is seeking. In reference to Yusuf V. Akindipe (Supra) he argued that in the definition of a reasonable cause of action extrinsic evidence or material in form of affidavit evidence is not permissible but the claims of the claimant or plaintiff only to ascertain the jurisdiction of the court. He argued finally on this point that the court below was wrong to have ignored the claims and the reliefs sought by the appellant. He urged on the court to resolve issue 2 in favour of the appellant.
In response to Issue No. 2, learned counsel for the respondent took his time to restate the meaning and definition of the terms; locus standi and cause of action and to submit that it is the wrongful act on the part of the defendant which gives the plaintiff the cause of complaint. On this he relied on Attorney General of Bayelsa V. Attorney general of rivers (2006) 12 SCM (Pt. 2) 1 38, 39; Abubakar V. Babaji Oil (2007) 3 SCM 37, 63. He argued that until there is an existent legal right and in frigent of same, a cause of action cannot arise, in reference to Osigwe V. PSPLS management Consortium Ltd. (2009) All FWLR (Pt. 470) 622; Shell Petroleum Development 7 Anor. vs. V.X.M. (2006) 14 SCM (Pt. 2) at 348-385.As to locus standi he argued that a person has standing where the reliefs sought would confer on him some benefits; that the person must show he has some cognizable right to protect in initiating the suit. He relied on Owudunni V. Regd. Trustees (2000) FWLR (Pt. 9) 1455, 1480;FalomoV. Kichina (2005) All FWLR (Pt. 284) 397, 406.By and large, it is argued that the case of the appellant has not disclosed any cause of action and himself as the appellant lacks locus standi. He urged the court to resolve this issue in favour of the respondent.
In relation to Issue 3 counsel for the appellant cited Order 13 Rule 35 (5) of the Federal High Court Rules to submit that whether for the Respondents to file their counter-affidavit in opposition to the originating summons they chose to raise an objection. It is argued that by the failure to contest the Originating
Summons, they had admitted the facts contained in the affidavit in support of the Originating summons and the court below ought to have entered Judgment for the appellant. He relied on Bakare V. Ajose Adeoj on (2014) 15 CNJ (Pt. 1) 2o2, 232-233; Onatohokan V. Wema Bank (2011) 5 SCNJ 266, 282 to further submit that where a defendant chose to file an objection the locus standi of the plaintiff without filing a defence alleges that the plaintiff has not disclosed reasonable cause of action, he is deemed to have admitted the facts in the Originating Process or Statement of claim. In that case it is for the court to enter Judgment over the originating Process in favour of plaintiff. He argued that the court below abdicated its responsibility and therefore call on this court in exercise of the powers under Section 15 of court of appeal Act to evaluate evidence of the material before the court and enter Judgment for the appellant accordingly.
In response to this issue counsel for the respondent argue that the call on this court to enter Judgment for the appellant based on the originating Summons was premature so far has hearing over the same was yet to be taken citing Hashidu V. Goje (2004) All FWLR (Pt. 228) 662-695
Counsel for the appellant arguing issue No. 4 has submitted that the court below ought to have entered Judgment for the appellant on the Originating Summons so far as there was no counter-affidavit to controvert facts deposed therein the implication of which is that the averments thereto were admitted, rather the court below glossed over issues including the issue of evaluating the affidavit evidence attached to the Originating Summons and documentary Exhibits annexed to the affidavit, among other issues.
In response to those submission on Issue No. 4 it was argued that the objection raised by the respondents was akin to a challenge on the jurisdiction of court to entertain the case and as such issue relating to jurisdiction of court can be raised any time without having to file a defence or a counter-affidavit. He relied on several cases including Elebanyo V. Dawodu (2006) All FWLR (Pt. 328) 604; Ebge V. Alhaji (1990) 1 NWLR (Pt. 128) 546; Onibudo V. Akibu (1982) All FWLR 207; Odire V. Obor (1974) N SCC 103, 107.
The terms locus standi and cause of action have become familiar legal jargons in our jurisprudence owing to their application and usage and our law books are now replete with decisions of courts on these area of our law.
Simply put locus standi denotes the legal capacity to institute proceedings in a court of law.it is used interchangeably with terms like standi or title to sue thus in private law the plaintiff is said to have standing in a matter only if he has a special legal right or alternately if he has sufficient or special interest in the performance of the duty sought to be enforced or where his interest is adversely affected. What constitute a legal right, sufficient or special interest or interest adversely affected depends on the facts of each case. See: Senator Adesanya V. President, Federal Republic of Nigeria (1981) 5 SC 69 or (1981) All NLR 1. See further definition in Akinfolarin V. Akinnola (1994) 4 SCNJ (pt. 1) 30, 61; Omodunni Vs. Regd. Trustees (2000) 6 SCNJ 399, 417. It follows therefore that when the locus standi of plaintiff is challenged it is the originating process that the court need to look at to discover the standing of the plaintiff and not any other document. The statement of claim or any other originating process is the cynosure of the exercise. See. Disu V. Ajilomuna (2007) 7 SC (Pt. 11) 1; Osun State Government V Sestisione H. Nigerian Ltd (2012) LPELR - &936 (CA).A cause of action on the other hand, is defined to mean the facts which when proved will entitle a plaintiff to a remedy against a defendant. It is the state of facts which gives a person the right to judicial reliefs see; Ojukwu v. Yaradua (2009) All FWLR (Pt. 482) 1065, 1119-120 Abubakar V. BabajiOil92007) All FWLR (Pt. 362) 1855, 1887-1888; NPA Plc. Vs. Lotus Plastic ltd. (2006) All FWLR (Pt. 297) 1023. 1038. Like the Issue of locus standi, cause of action can be ascertained by reference to the Statement of claim or any other process originating the action. See: Attorney General Kwara State Vs. National Judicial Council (2010) LPELR 5009 CA).
ON reason which necessitate the objection being taken at the court below is an account of standing. It is alleged that the plaintiff (appellant has no locus standing to institute the action. It is also alleged that the suit does not disclose reasonable cause of action among others. These facts were deposed to in the affidavit in support of the objection taken at the trial court. It is clear in the ruling delivered by it at pages 431-457 particularly pages 455-457 heavily relied on what it described as uncontroverted affidavit evidence of the respondents to uphold the objection and thus the suit was struck out.
In the determination of the question whether or not plaintiffs case disclose a cause of action or the plaintiff has locus standing, the approach which the courts of the land have approved is to look at the Statement of claim or any other Originating Process so as to ascertain those claims. It is thus a wrong approach when the court below resorted to and relied on the affidavit evidence in support of the Motion on Notice raising objection to strike out the Suit for want of standing to discover whether the suit disclosed any reasonable cause of action or whether the plaintiff has locus standi.
The appellant, by the originating Summons filed by him said he partook or participated in the exercise leading to the Primary Elections conducted by the 2ndrespondent on the 11th December, 2014 for the purpose of nominating a candidate to represent Taraba South Senatorial District at the Senate. He said he is a card carrying member of the Peoples Democratic Party and an aspirant in the said Primary Election. He annexed Exhibits A, B and C to the Originating Summons as documents evidencing his membership of the party, evidence for payment of nomination and expression of Interest Form to contest the primaries (Exhibits B and C). So what greater evidence is there to show as would accord the Appellant the locus standi in this case on appeal? He is an aspirant.
Section 87 (9) of the Electoral Act, 2010 provides thus:
87 (9) Notwithstanding the provisions of this act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT, for redress
It is my view that the appellant has brought himself within the provisions of the Electoral Act as referred to above to confer on him the necessary locus standi. See: Emenike Vs. PDP (2012) LPELR-7802 (SC) or (2012) All FWLR (Pt. 1640) 1261.In ArdoV. Nyako (2014) All FWL (Pt. 744) 130, 160 the apex court held:
Under the said section 87 (9), an aspirant who can invoke the jurisdiction of the court and as has been held in a long line of cases from this Court, is the one who complains that any of the provisions of the Electoral Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election
See further decision in Uwazurike V. Nwachukwu (2013) All FWLR (Pt. 860) 1206 1225-1227; Adebayo V. PDP (2013) All FWLR (Pt. 695) 204, 230.
The question earmarked for determination in the Originating Summons is to this effect:
1. Whether the 2nd defendant for the purpose of selecting its candidates for Senate Primary Election for Taraba South Senatorial District in Taraba State for the 2015 general Elections can adopt a procedure other than that provided in 2nd defendants Electoral Guideline for Primary Elections 2014, the 2nd defendants Constitution 2012 (as amended) and the Electoral Act, 2010 (as amended).
By virtue of the appellant being an aspirant in the Primary Elections and the complaints laid by him relative to that election, the (appellant) has the required locus standi, to institute the action as he did. Consequently, the court below was in error when he struck out the Suit on this account.
Issues 3 and 4 are interwoven. Issue No. 3 in particular seek to invoke the powers of this court under Section 15 of the Court of Appeal Act so that issues presented in the Originating summons are thrashed out on the merit at this level based on the materials available and are before this Court. This call I think is premature and this court cannot at this stage consider that request. The question before this court on appeal arose from interlocutory ruling at the court below. The merits of that case have not been considered by that court. To urge on this court to hear the case on the merit is to usurp the functions of the trial court and we reject this call.
On the whole therefore this appeal succeeds in part and same is allowed. The ruling delivered at the court below on 17th September, 2015 in Suit No. FHC/TAR/SC/5/2015, Motion No. FHC/TAR/M/24/2015 is hereby set aside. Consequently, this case is remitted to the Chief Judge of the Federal High Court who shall assign it to a Judge other than Justice D. U. Okorowo for hearing on the merit.
JUMMAI HANNATU SANKEY, J.C.A.
BIOBELE ABRAHAM GEORGEWILL, JCA:
This appeal revolves in the main around the issues whether an originating summons filed in one State of the Federal Republic of Nigeria or the Federal Capital territory High Court and for service within the same state or the Federal Capital Territory requires leave to be issued and must also be endorsed for service out of the said state to be valid; whether a person who participated in the primary election of a Political Party for the nomination of its candidate for general election is a person with or without the requisite locus standi to institute an action in a court of law to challenge the outcome of the said primary election by virtue of the provisions of Section 87 (9) of the Electoral Act 2010 as amended?
In the lead judgment just delivered by my learned brother SAIDU TANKO HUSAINI JCA, with which I am in complete agreement with the lucid reasons and impeccable conclusions reached therein, these crucial issues have been admirably resolved in favor of the Appellant as against the Respondents. I shall by way of contribution to the very lucid lead judgment just say a word or two on some if these crucial issues.
In law, it has long been well accepted that to determine the locus standi of a Plaintiff, it is only the averments in the statement of claim or depositions in the affidavit in support of originating summons and not the averments in the statement of defence or depositions in the affidavit in supporting of notice if preliminary objection or counter affidavit to the originating summons that is to be carefully scrutinized to see whether or not the plaintiff indeed has the locus standi to institute the claim against the defendant. See Adesanya V. President, Federal Republic of Nigeria (1981) All NLR 1; Owodunmi V. Regd. Trustees of Celestial Church of Christ (2000) FWLR (Pt. 9) 1455; Attorney General of Kwara State V. NJC (2010) LPELR 5009 (CA).
My lords, regrettably, the Court below considered both the affidavit in support f the originating summons albeit very perfunctorily and the affidavit in support of preliminary objection in-depth and believed the depositions in the affidavit in support of the preliminary objection as deemed admitted in the absence of any counter affidavit of the Appellant and relied solely on the affidavit of Respondents in support of the Preliminary Objection to dismiss the Appellants suit.
In my humble view, since in law the only document to consider in determining the locus standi of a Plaintiff is the originating process and the statement of claim and not the statement of defence or affidavit in support of preliminary objection, the court below erred gravely in law to proceed n the manner it did and which resulted into the erroneous dismissal of the Appellants suit. See Adesanya V. President, Federal Republic of Nigeria (1981) All NLR 1; Owodunmi V. Regd. Trustees of Celestial Church of Christ (2000) FWLR (Pt. 9) 1455.
Now, was leave required in the circumstances of this case for the issue of the originating summons by the Appellant against the Respondent on the face of the address for service of the Respondent and the place of the issue of the originating summons? Heavy and indeed total reliance was placed on the decision of the Apex Court, the Supreme Court in Owners of M. V. Arabella V. NAIC (2008) all FWLR (Pt. 443) 208 by the Respondents in their contention that without leave of Court to issue the originating summons, the Appellants suit was incompetent, an argument which the court below by its ruling endorsed.
However, a careful perusal of the decision in the Owners of M. V. Arabella V. NAIC (Supra) would readily reveal that it was decided on the provisions of Order 10 rule 14 of the Federal High Court Civil Procedure rules 1976 and Section 97 of the Sheriffs and Civil Process Act 2004 and not on any of the provisions of the extent rules of the court below, which by Order 6 Rule 3 of FHC Rules 2009, defined service out of jurisdiction to mean service outside the Federation of Nigeria.
My lords, in the instant case in the originating summons was filed in Abuja with all the addresses for service also at Abuja. The suit was suo motu subsequently transferred to the Taraba Judicial Division of the court below by the court. See page 338 of the Record. In the ruling appealed against, the court below held that the leave of court was required to issue and serve the originating summons on the Respondents at Abuja outside the jurisdiction of the Jalingo Judicial Division of the court below.
Now, was the court below right in this decision? I do not think so! By the very clear provision of Order 6 Rule 31 of the FHC Rules 2009, on leave of court was required to issue and serve an originating process filed in any Judicial Division of the Federal High Court within the Federation of Nigeria and thus in law the Appellant required no leave of court as erroneously held by the Court below.
At any rate, on the undisputed facts on which all the parties are ad idem, the originating summons was issued in Abuja and for service on the parties in Abuja and therefore there was absolutely no need for any leave to issue and serve same on the Respondent as one being served out of jurisdiction as erroneously held by the court below. In my finding, in the circumstances of the established facts in this case leave to issue the originating summons for service out of jurisdiction was completely unwarranted and unnecessary as no such leave was required.
The court below had also held without being called upon by either of the parties that the originating summons of the appellant was also incompetent having not been marked and endorsed as a concurrent writ for service out of jurisdiction pursuant to Section 98 of the Sheriffs and Civil Process Act 2004. See pages 453 454 of the record.
My lord, the law has long been well settled, and it no longer admits of any contrary arguments, that while a court has the plentitude of power to raise an issue suo motu but it must never decide on such issue raised suo motu without first calling on the parties to address it on the issue raised suo motu. Consequently, any issue raised suo motu by a court, as did the court below in the issue of endorsement as concurrent writ pursuant to SECTIO 98 of the Sheriffs and Civil process Act 2004, and in which any decision is reached without first calling upon and hearing the parties on such an issue raised suo motu is one arrived at in utter breach of the right to fair hearing of the parties and thus void and thus renders both the proceedings and judgment of such a court without much ado. A party affected adversely by such a decision is in law entitled exdebito justitia to have such an invalid order set aside. See Iriri V. Erhurhobora (1991) 2 NWLR (Pt. 173) 252; Badmus V. Adegunde (1991) 11 NWLR (pt. 627) 493; Balogun (1978) 1 SC 53; Jev & anor V. Iyortyom & Ors (2014) LPELR 23000 (SC).
In Eholor V. Osayande (1992) 1 NWLR (Pt. 249) 524, Nnaemeka JSC, had pronounced with finality thus:
In my respected opinion, our system of appeals in our adversary system does not permit courts to dig into the records to fish out issues, no matter how patently obvious, and without hearing the parties use it to decide an issue in controversy between the parties to the appeal. It runs counter to the impartial status and stance expected of a judge in the system. It is better that the parties raise and argue it by themselves. But if it is so fundamental that it goes to the jurisdiction or vires of the court then it must be brought to the notice of the parties to the appeal and argument received on it before it is decided.
There is also the very crucial issue of the allegation of non compliance with the provision of Section 87(9) of the Electoral Act 2010 as amended and the PDP guidelines for the conduct of primaries for the election of its candidates for the 2015 General Election as raised by the Appellant in the originating summons against the Respondents and whether such an issue raises a political question only and which is non justifiable in law and thus does not confer any locus on the Appellant?
My lords, it is true in law that the question of who is a candidate of a Political party is a clearly a political question and which is non justifiable being at the sole discretion or power of the party concerned as its internal affairs over which no court has the jurisdiction to superintend. See Onucha V. Okafor (1983) 2 NSCC 494. See also Taiwo V. Adeboro (2011) all FWLR (Pt. 584) 53; Anyanwu V. Ogunewe (2014) All FWLR (Pt. 738) 1012.
However, be that as it may, it is also equally true in law that a person who participated as a candidate in a primary election of a Political party and alleges a breach of Section 87(9) of the Electoral Act 2010 as amended and non compliance with the guidelines of that Political party for the conduct of the primaries for selection of its candidate for election has the locus standi to sue and such an issue is not a political question and it thus justifiable. See Ardo V. Nyako (2014) All FWLR (Pt. 244) 130; Anyanwu V. Ogunewe (2014) All FWLR (Pt. 738) 1012 @ 1039; Uwazurike V. Nwachukwu (2013) All FWLR (Pt. 680) 1206; Adedayo V. P. D. P. (2013) All FGWLR (Pt. 695) 204; Emenike V. PDP (2012) All FWLR (Pt. 640) 1261; Lado V. CPC (2012) All FWLR (Pt. 607) 545; APGA V. Anyanwu (2014) All FWLR (Pt. 735) 243; Daniel V. INEC (Supra).
It was also vehemently contended for the Respondents that for a person, who had participated in a primary election of a Political Party, to have the locus to sue over the conduct and outcome of such a primary election he must also be on respect of a valid primary and thus once a person alleges that the primary was invalid je shoots himself in the food and renders his claim incompetent. Reliance was placed on Lado V. CPC (2012) All FWLR (Pt. 607) 545 and Daniel V. INEC (supra).
Interestingly, having taken time to thoroughly read through the law reports of these cases, I am unable to agree with the contention of the Respondents counsel that they are decisions to the effect as contended by them in urging this court to hold that the Appellant lacks the locus standi being not the person who emerged victorious at the challenged primary election of the 2nd Respondent.
On the contrary, the very clear position of the law as resonate in virtually all the decisions of the Supreme court ant his court as touching on the issue of locus standi pursuant to Section 87(9) of the electoral Act 2010 as amended is to the well settled effect that a person once he was a candidate at the primary of Political party and who alleges a breach of the Electoral Act 2010 as amended and guidelines of the affected Political party indeed has the locus standi so sue by virtue of Section 87(9) of the Electoral Act 2010 as amended and a such claim, such as the Appellants claim in the instant case, is clearly justifiable in law and thus clothing such a person, such as the Appellant, with the requisite locus standi to sue contrary to the perverse decisions of the court below, which cannot be allowed to stand. See Alhassan & anor V. Ishaku & Ors. (2016) LPELR 40083 (SC). See also Ardo V. Nyako (2014) All FWLR (Pt. 244) 130; Anyanwu V. Ogunewe (2014) All FWLR (pt. 738) 1012 @ p. 1039. Uwazurike V. Nwachukwu (2013) All FWLR (Pt. 680) 1206; Adedayo V. P. D. P. (2013) All FWLR (Pt. 695) 204; Emenike V. PDP (2012) All FWLR (Pt. 640) 1261; Lado V. CPC (2012) all FWLR (Pt. 607) 545; APGA V. Anyanwa (2014) all FWLR (Pt. 735) 243.
It is in the light of the above few comments of mine and for the fuller reasons adroitly marshalled out in the lead judgment that I too hold that the Appeal is pregnant with merit and perforce succeeds. Consequently, I too allow the appeal in part. However, in the circumstances of this case, I also do not think that this is a proper case for this court to invoke its power under section 15 of the Court of Appeal Act 2004 to hear and determine the appellants suit at once as urged upon this court by the appellants counsel. In my view it would be better as it is in the interest of justice that both parties return to the court below and join issues on the claims of the appellants and the matter be heard and determined on the merit. In the result, the Appellants suit is hereby remitted to the Chief Judge of the Federal High Court for expeditious hearing and determination on the merit according to law before another judge other than D. U. Okorowo J.
1. AbbassAjiya Esq., for the Appellant
2. E. J. Akanmode Esq., (with M. I. Simon, E. A. Ibrahim Effiong and Ahamed Esq.) for the Respondents