Legalpedia Citation: (2023-04) Legalpedia 15250 (SC)

In the Supreme Court of Nigeria

Wed Apr 5, 2023

Suit Number: SC.CV/240/2023

CORAM

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN JUSTICE OF THE SUPREME COURT OF NIGERIA

CHIMA CENTUS NWEZE JUSTICE OF THE SUPREME COURT OF NIGERIA

UWANI MUSA ABBA AJI JUSTICE OF THE SUPREME COURT OF NIGERIA

HELEN MORONKEJI OGUNWUMIJU JUSTICE OF THE SUPREME COURT OF NIGERIA

EMMANUEL AKOMAYE AGIM JUSTICE OF THE SUPREME COURT OF NIGERIA

PARTIES

HON. RITA ORJI APPELANT(S)

APPELLANTS

1. MR. FRANCIS BARTHOLOMEW CHIMA
2. DR. WILSON DIRIWARI
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. PEOPLES DEMOCRATIC PARTY (PDP) RESPONDENT(S)

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, ELECTION, JUDGMENT, LIMITATION LAW, PRACTICE AND PROCEDURE

 

SUMMARY OF FACTS

The 2nd respondent filed a Writ of Summons before the Federal High Court Lagos seeking a declaration that he is the authentic candidate of the 4th respondent (PDP) having polled the highest number of votes cast at the 4th respondent’s primary election conducted on 22nd May, 2022 to select and nominate its candidate for Ajeromi/Ifelodun Federal Constituency of Lagos State in the 2023 elections. He further claimed that the submission of the name of the 3rd defendant (now 1st respondent) to the 1st defendant (now 3rd respondent) on 17th June, 2022 as its candidate was unconstitutional, unlawful, null and void and of no legal effect.

In reaction to the processes served on him, the 1st respondent filed a counter-claim that the election was rescheduled and he won the election. On the same day, the 4th respondent issued him with a certificate of return and he was issued with the INEC nomination form.

The 1st and 2nd respondents were not the only aspirants who contested the election. The appellant herein and one Emilia Uzeude were also aspirants. The appellant was dissatisfied with the nomination of the 1st respondent as the party’s candidate. She instituted an action before the Federal High Court, Abuja Division just four days after the suit filed by the 2nd respondent in Lagos. She claimed that the National Executive Committee of the 1st Defendant acting through the National Working Committee of PDP have upheld her candidacy as the PDP’s candidate for Ajeromi/Ifelodun Federal Constituency as communicated vide an extract dated the 21st day of June, 2022 to the PDP’s National Legal Adviser.

Although filed later in time than Suit No. FHC/L/CS/1202/2022 before the Lagos Division of the Court, judgment in the appellant’s suit FHC/ABJ/CS/993/2022 was delivered first on 19th October, 2022 in her favour and her reliefs granted.

By a motion on notice filed on 7th November, 2022 the appellant sought leave to join in Suit No. FHC/L/CS/1202/2022 pending before the Lagos Division of the Federal High Court. She was joined as 7th defendant by an order granted on 16th November, 2022. She pleaded the judgment obtained in her favour in Suit No. FHC/ABJ/CS/993 and urged the Court to decline jurisdiction on the ground that the said judgment had settled the question as to who was the 4th respondent’s candidate for the election in contention.

The learned trial Judge however, assumed jurisdiction and dismissed the claim of the plaintiff (2nd respondent herein) as well as the counter-claim of the 3rd Defendant (now 1st respondent) and held that the 4th respondent had no candidate for the 2023 general election for the Ajeromi/Ifelodun Federal Constituency of Lagos State.

 

The 1st respondent challenged the judgment of the Abuja Division of the Federal High Court. In a considered judgment delivered on 29th December, 2022, the appeal was dismissed and the judgment of the trial Court affirming the appellant as the party’s candidate was affirmed. The 1st respondent further appealed to this Court vide Appeal No. SC/CV/239/2023 filed on 6th January, 2023. The appeal was eventually withdrawn and dismissed on 22nd February, 2023.

The 1st respondent was also dissatisfied with the judgment of the Lagos Division of the Federal High Court dismissing his counter-claim. He appealed against the judgment. The appellant contends that the attention of the lower Court was drawn to the judgment of the Abuja Division of the Court in CA/ABJ/CV/1167/22 delivered in her favour.

The Court determined the appeal and entered judgment in favour of the 1st respondent declaring him as the 4th respondent’s candidate for the disputed Federal Constituency. Not surprisingly, the Appellant was dissatisfied with the judgment and filed the instant appeal. The 2nd respondent is also dissatisfied with part of the judgment and filed a notice of cross appeal.

 

HELD

Appeal allowed

ISSUES

Ø Whether the lower Court had jurisdiction to hear and determine the appeal of the 1st Respondent when:

(a) Suit No. FHC/CL/CS/1202/22 Between Dr. Wilson Diriwari V. Independent National Electoral Commission and 7 others was commenced vide Writ of Summons instead of Originating Summons by virtue of the Federal High Court Pre-Election Practice Direction, 2022?

(b) The Counter-claim of the 1st Respondent was filed out of time in violation of Section 285(9) of the Constitution of the Federal Republic of Nigeria (as amended)?

(c) The trial Court had determined Suit No. FHC/L/CS/1202/22 Between Dr. Wilson Diriwari V. Independent National Electoral Commission and 7 Ors. notwithstanding the judgment of the Federal High Court, Abuja in Suit No. FHC/ABJ/CS/993 Between Hon. Rita Orji V. Peoples Democratic Party and 2 Ors?

(d) The appeal of the 1st Respondent was an abuse of Court process in view of the judgment of the Court of Appeal, Abuja in Appeal No. CA/ABJ/CV/1167/22 Between Mr. Francis Bartholomew Chima V. Hon. Rita Orji and 2 Ors?

Ø Whether the lower Court was right in its evaluation of the evidence to the extent of construing same and holding that the 1st Respondent proved his counter-claim as the declared winner of the primaries conducted on the 23rd May, 2023 and therefore the candidate of the 4th Respondent for the Ajeromi/Ifelodun Federal Constituency?

RATIONES DECIDENDI

JURISDICTION – WHERE A COURT LACKS JURISDICTION

The issue of jurisdiction, as has been held in numerous decisions of this Court, is fundamental to the adjudicatory powers of any Court. It has been described as the life blood of a cause or matter without which, as observed by Mohammed Bello, CJN in Utih Vs Onoyivwe (1991) LPELR – 3436 (SC) @ 54 C – D, “the action would be like an animal that has been drained of blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise.”

Jurisdiction is a matter of strict law donated by the Constitution or relevant statute. Where the Court lacks jurisdiction to entertain a cause or matter, any step taken in the proceedings and any judgment or order therein, no matter how well reasoned, would amount to a nullity. See Madukolu vs Nkemdilim (1962) 1 ALL NLR 387 @ 594, Utih Vs Onoyivwe (supra), Idisi Vs Ecodril Nig. Ltd & Ors (2016) ALL FWLR (Pt. 850) 1016, APC & Ors Vs Enugu State Independent Electoral Commission & Or. (2021) LPELR – 55337 (SC) @ 34 B-D. – Per K. M. O. Kekere-Ekun, JSC

LIMITATION – EFFECT OF LIMITATION LAW – DETERMINING WHEN THE CAUSE OF ACTION ACCRUED FOR THE PURPOSE OF A LIMITATION LAW

The law is quite well settled that the time fixed by the Constitution for doing anything cannot be extended. This is particularly so in election and election related matters, which are sui generis, or in a class of their own, having regard to their time sensitive nature. The time frames stipulated are to be strictly complied with. See Marwa Vs Nyako (2012) LPELR- 7837(SC) @ 36 D, James Vs INEC (2015) 12 NWLR (Pt. 1474) 538, Eze vs Umahi (2022) LPELR – 59157(SC) @ 16 E – F.

In a recent decision of this Court in Appeal No. SC/CV/26/2023: Mazi Okwudili Nwa-Anyajike & Anor Vs INEC & Anor delivered on 17th February, 2023, the effect of Section 285(9) of the 1999 Constitution, as amended and how to determine when a cause of action accrues for the purpose of a limitation law was restated thus per Kekere-Ekun, JSC:

“The section is no doubt cast in the mould of a limitation law. The effect of a limitation law is that a plaintiff who might otherwise have had a cause of action, loses the right to enforce it by judicial process once the period prescribed by the law for filing the action has lapsed The right to judicial relief becomes extinguished by effluxion of time. See Aremo II Vs Adekanye (2004) 13 NWLR (Pt.891) 572 @ 592 C- F, INEC vs Ogbadibo Local Govt. & Ors, (2016) 3 NWLR (Pt.1498) 167, Egbe vs Adefarasin (1987) 1 NWLR (Pt. 47) 1, INEC vs Enasito (2015) LPELR – 24839 (SC) @ 50-51 C-A.

In order to determine when the cause of action accrued for the purpose of a limitation law, the general rule is that the Court will consider only the Writ of Summons and Statement of Claim or the Originating Summons and Supporting Affidavit where the suit is commenced by Originating Summons. If the time of filing the action, as shown on the Writ of Originating Summons is beyond the period allowed by the limitation law, the action is statute barred. See: Eze Vs Umahi (supra), Ibrahim vs Lawal 2015 LPELR -24736(SC) @ 35-36 C-D.” – Per K. M. O. Kekere-Ekun, JSC

 

COUNTER-CLAIM – MEANING OF COUNTER-CLAIM

As rightly submitted by learned counsel for the 1st respondent, a counter-claim is an independent action which allows a defendant to maintain an action against the plaintiff as if he had filed a separate suit. It is governed by the same rules of pleadings as the original action. For the purpose of the counter-claim, the plaintiff becomes the defendant while the counter claimant becomes the plaintiff. See Eze Vs Umahi (supra), Oroja & Ors Vs Adeniyi & Ors. (2017) LPELR – 41985 (SC) @ 21 – 22 F – B, Lokpobiri vs Ogola (2015) LPELR – 40838 (SC) @ 64 – 65 E -A; (2016) 3 NWLR (Pt. 1499) 328, Maobison Inter-Link Association Ltd. Vs U.T.C. Nig Plc (2013) 9 NWLR (Pt. 1359) 197 @ 209 A – C. – Per K. M. O. Kekere-Ekun, JSC

COUNTER-CLAIM – LIMITATION LAWS THAT APPLY TO COUNTER-CLAIMS

…a person who has a claim cannot wait until another party files a suit before pursuing his own action. It was held by this Court in Eze Vs Umahi (supra) @ 21 D – F:

“…a counter-claim is an independent action, which allows a defendant to maintain an action against the plaintiff as if he had filed a separate action.

…it must therefore comply with the applicable limitation law as if it were the main claim.” – Per K. M. O. Kekere-Ekun, JSC

COUNTER-CLAIM – FILING A COUNTER-CLAIM IN AN ELECTION MATTER

It is necessary to reiterate the fact that election and pre-election matters are sui generis and the limitation of time provided in the Constitution must be strictly adhered to. Where the 1st respondent, in defending the suit, sought a declaration or an order affirming his election, there was in fact no need to file a counterclaim. His duty was to defend the suit filed against him. A successful defence would mean that his election stood as the valid election. Having elected to file a counter-claim, he is in the same position as if he had filed the suit ab initio. The election purportedly held on 23rd May, 2022 was the event that gave rise to his contention that he was the winner of the election and duly recognized by the 3rd and 4th respondents as such. The time to file his counterclaim therefore began to run from that date, if indeed he had any complaint. The prosecution of election-related matters requires diligence and vigilance, and a party cannot wait until he is sued before making a claim of his own. See Idiagbon Vs APC & Ors (2019) 18 NWLR (Pt. 1703) 102 @ 119 G. – Per K. M. O. Kekere-Ekun, JSC

JURISDICTION – THE NATURE OF JURISDICTION OF THE FEDERAL HIGH COURT

Section 19(1) of the Federal High Court Act provides:

“19(1) The Court shall have and exercise jurisdiction throughout the Federation and for that purpose, the whole area of the Federation shall be divided by the Chief Judge into such number of judicial divisions or part thereof by such name as he may think fit.”

It is quite clear from the above provision, by its natural and ordinary meaning, that the Federal High Court is a single Court with jurisdiction over the entire territory of Nigeria but divided into various divisions pursuant to the powers of the Chief Judge, exercised under the said section, for administrative convenience. See P.D.P Vs Uche (2023) LPELR -59604 (SC) @ 27 F- G; 86 – 87 B – A, Samuel vs APC & Ors (2023) LPELR – 59831 (SC) @ 30 – 31 F – A, Akeredolu Vs Abraham (2018) LPELR – 44067 (SC) @ 59C. In the circumstances, two divisions of the same Court cannot preside over the same subject matter. – Per K. M. O. Kekere-Ekun, JSC

APPEAL – CONDUCT OF COURTS OF COORDINATE JURISDICTION

The law is firmly settled that a Court cannot sit on appeal over the judgment of a Court of coordinate jurisdiction. See Cole Vs Jibunoh (2016) LPELR-40662 (SC) @ 17 – 18 A – A, Dingyadi vs INEC (2011) 10 NWLR (Pt. 1255) 347. In the case of Eneh vs NDIC (2018) LPELR – 44902(SC) @ 24 – 25 A – D, His Lordship Nweze, JSC reiterated the dictum of Pats-Acholonu, JSC in NIMB Ltd vs UBN Ltd & Ors. (2004) LPELR – 2003 (SC) @ 20 C – G, wherein it was eloquently stated thus:

“The theory of justice to which we adhere rests a priori the premise that there must be certainty and parties to a legal duel should be in a position to know where they stand at a certain time. A system of law where Judges of the same degree i.e. of coordinate jurisdiction make contradictory and incompetent orders in respect of the same subject matter involving the same parties i.e. each relying on his whims and caprices, prejudices and sometimes vaunting ego, makes noisome and mockery of the law. The beauty of what I might describe as the romance of law is that just as stare decisis exercises a restraining influence on our Courts, so too do discipline in the Courts in dutifully adhering to normative order by which Courts of coordinate jurisdiction do not sit on Appeals on each other, attracts respect for the law.”

The situation is even worse in the instant case where conflicting decisions have been rendered by different divisions of the same Court. Once there was in existence a final judgment of the Abuja Division of the Federal High Court on the same subject matter pending before the Lagos Division of the Court, the only option was for the Lagos suit to be terminated and for the aggrieved parties to exercise their right of appeal against the judgment already brought to their attention. – Per K. M. O. Kekere-Ekun, JSC

ISSUE ESTOPPEL – EFFECT OF ISSUE ESTOPPEL

In Ogbodu & Ors vs Ndiribe & Ors (1992) LPELR- 2283 (SC) @ 57 C – E, His Lordship, Karibi-White, JSC stated:

“In the recent decision of this Court in Ezewani Vs Onwordi (1986) 4 NWLR (Pt. 33) 27 SC, this Court held that issue estoppel applies to preclude a party from contending the contrary or opposite of any specific point which, having once been distinctly put in issue has with certainty and solemnity been determined against him. The estoppel applies whether the point involved is one of law or fact or of mixed law and fact…”

The conditions for the application of the doctrine of issue estoppel were stated in the case of Adedayo Vs Babalola (1995) 7 NWLR (Pt. 408) 383 @ 404 H as follows:

1. The same questions were decided in both proceedings.

2. The judicial decision said to create the issue estoppel was final; and

3. The parties to the judicial decision or their privies were the same parties as the parties to the proceedings in which the estoppel is raised or their privies.

The concept of abuse of judicial process, as held in Igbeke vs Okadigbo (2013)12 NWLR (Pt. 1368) 225 @ 250 – 251 G – B, is not precise. Its common feature is the improper use of judicial process. It was held that multiplication of actions on the same subject matter can constitute an abuse of the process of the Court as long as the parties to the action and the subject matter are the same. – Per K. M. O. Kekere-Ekun, JSC

MULTIPLE APPEALS – DUTY OF PARTIES WHERE THERE IS MORE THAN ONE APPEAL

Learned Counsel for the 1st respondent conceded in paragraph 4.25 of his brief that at the time the appeal was filed in the Lagos Division of the Court, the appeal before the Abuja Division of the Court was already pending. Being the appellant in both appeals, it was the duty of the 1st respondent to seek the consolidation of the two appeals or to discontinue the appeal filed later in time.

I agree with learned counsel for the appellant that pursuing two appeals at the same time on the same subject matter and between the same parties amounted to an abuse of the Court’s process. – Per K. M. O. Kekere-Ekun, JSC

ELECTION – WHO CAN BE DECLARED WINNER OF AN ELECTION

By the provision of Section 285(13) of the 1999 Constitution (as amended), the Court shall not declare any person a winner at any election in which he has not fully participated in all the stages of the election.

The clear position of the law now is that a person must participate in all the stages of an election before he can be declared the winner of the said election. See Per OKORO, JSC, in JEV & ANOR V. IYORTYOM & ORS (2014) LPELR-23000 (SC) (PP. 57 PARAS. B).

– Per U. M. Abba-Aji, JSC

COUNTER-CLAIM – POSITION OF A COUNTER-CLAIM

A counter-claim is in law in the same position as the original claim and is subject to all the rules of procedure as the original claim. – Per H. M. Ogunwumiju, JSC

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Federal High Court Pre-Election Practice Direction, 2022
3. Federal High Court Act
4. PDP Constitution
5. PDP Electoral Guidelines for Primary Elections of 13th March 2022

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