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Joseph Hemen Boko V Hon. Benjamin B. Nungwa & Ors

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Joseph Hemen Boko V Hon. Benjamin B. Nungwa & Ors


Legalpedia Electronic Citation: LER [2018]SC. 732/2016

APPEAL NO: SC. 732/2016

AREAS OF LAW:

APPEAL, COURT, ELECTION, JUDGMENT AND ORDER, JURISDICTION, PRACTICE AND PROCEDURE, WORDS AND PHRASES

SUMMARY OF FACTS:

The Plaintiff/Appellant took out an Originating Summons against the Defendants/Respondents, contending that he was the candidate of the 2nd Respondent for the general election billed for April, 2015 to represent Kwande West State Constituency in the Benue State House of Assembly.  The Appellant claimed that having scored the highest number of votes in the primary election conducted by the 2nd Respondent, his name was not published as such by the 3rd Respondent. The 1st and 2nd Respondents, on the other hand contended that although the Appellant was declared to have scored the highest number of votes at the primaries, the 1st Respondent did not agree with the declaration. Consequently, the 1st Respondent petitioned the 2nd Respondent’s Primary Election Committee on the basis that it was counterfoil votes that were used to pad the votes of the Appellant and that he was mischievously declared the winner of the said primary election.

Upon hearing the complaint/petition of the 1st Respondent, the 2nd Respondent sustained it and extracted the unlawful votes allocated to the Appellant through counterfoils of ballot papers hence, the 1st Respondent was accordingly declared as the winner of the primary election conducted by the said 2nd Respondent on 2nd December, 2014. The report of the findings of the Primary Election Committee was accepted and ratified by the National Working Committee of the 2nd Respondent which forwarded the name of the 1st Respondent to the 3rd Respondent as the candidate sponsored in the said election by the 2nd Respondent. The 1st Respondent said he consequently participated in the general election held on the 11th April, 2015 wherein he emerged victorious; hence he represents Kwande West State Constituency in the Benue State House of Assembly.

The Federal High Court, in its judgment, however, declined jurisdiction on the ground that the issue raised in the suit was an issue within the internal affairs of the 2nd Respondent. Dissatisfied with the ruling/judgment of the learned trial Judge, the Appellant appealed to the Court of Appeal while the 1st and 2nd Respondents filed a cross-appeal. It was on the strength of the cross –appeal filed 62 days out of time without leave, by the 1st and 2nd Respondent, that the lower court struck out the Appellants’ case in its entirety, and dismissed the Appellants’ appeal without giving it a hearing. It is against this decision that the Appellant has brought this appeal before this court.

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HELD:

Appeal Allowed

ISSUES FOR DETERMINATION:

  • Whether or not the lower court had jurisdiction to hear and determine the cross – appeal of the 1st and 2nd respondents after having found that the said cross -appeal had been filed 62 days out of time without leave of court.
  • Whether or not the portions of the Federal High Court (Civil Procedure) Rules, 2009 which deal with service and execution of process derived their force from sections 94 and 96(2) of the Sheriffs and Civil Process Act
  • Whether in view of the provisions of the Federal High Court (Civil Procedure) Rules, 2009 applicable to the instant suit, the case of the OWNERS OF THE MV “ARASELLA” V N.A.I.C (2008) 32 WRN 1 was rightly applied by the lower court to vitiate the Originating Summons filed by the appellant.
  • Whether or not the lower court had acted speculatively by voiding the appellant’s originating summons on the basis non-endorsement for service outside jurisdiction, after having found that the said address was not endorsed on the said summons.
  • Whether or not the lower court was competent to have assumed jurisdiction over the cross – appeal of the 1st and 2nd respondents when same was filed without the approved seal of the legal practitioner who signed same.
  • Whether or not the substantive case of the appellant was a no-go area as held by the lower court in the circumstance of this case.
  • Whether or not the failure to endorse the originating summons for service on the 2nd Respondent out of jurisdiction was capable of voiding the entire case, especially when the 2nd respondent was a nominal party in the case
  • Whether or not the 2nd respondent had, by its conduct in the case, waived the issue of irregularity as to service on it.

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RATIONES:

PRIMARY ELECTION – JURISDICTION OF HIGH COURT TO ENTERTAIN A DISPUTE ARISING FROM THE CONDUCT OF PRIMARY ELECTION

“Section 87 (9) of the Electoral Act 2010 (as amended) provides:-

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 Federal Capital Territory, for redress.

The above provision is very clear and ambiguous. By the very words of this enactment, any aggrieved candidate who took part in the primary election of a political party is entitled to apply to the Federal High Court or the High Court of a State or of the Federal Capital Territory for redress.” PER J. I. OKORO, J.S.C.

CONSTITUTION OF A POLITICAL PARTY- WHETHER THE CONSTITUTION OF A POLITICAL PARTY CAN OUST THE JURISDICTION OF A COURT OF LAW

“I need to point out here that the Constitution of the Federal Republic of Nigeria is supreme and soars far above the constitution and regulations of a political party. Thus, any section of the constitution of a political party or its regulations which seeks to oust the jurisdiction of a court duly conferred by the Constitution of Nigeria and other statutes made pursuant thereto, is null and void to the extent of its inconsistency. See First Bank of Nigeria Plc v T.SA Industries Ltd (2010)      15 NWLR (pt 1216) 247, (2010) LPELR – 1283 (SC), Ogaga v Umukoro & ors (2011) 12 SC pt 11, page 74 (2011) LPELR – 8229 (SC), Udenwa & anor v Uzodinma & ors (2013) 5 NWLR (pt 1346) 94, (2012) LPELR – 22283 (SC).” PER J. I. OKORO, J.S.C.

PRE-ELECTION MATTER – WHETHER A PRE-ELECTION MATTER IS EXTINGUISHED AFTER THE ELECTION AND THE WINNER SWORN INTO OFFICE

“I need to state emphatically that a pre – election matter or an appeal arising from same is not extinguished by the mere fact that the election took place and the winner sworn into office. See Eligwe v Okpokiri & ors (2014) LPELR – 24213 (SC) page 26 – 27 paragraphs E – D).

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PRE–ELECTION MATTER – STATUS OF A PRE–ELECTION MATTER INSTITUTED PRIOR TO THE CONDUCT OF AN ELECTION

“The law is trite that a pre – election matter that was instituted prior to the conduct of an election subsists and the court in which it was instituted continues to have jurisdiction to hear and determine the said pre-election matter even after the conduct of the election. See Dahiru & another v APC & ors (2016) LPELR – 42089 (SC) page 26-27 paragraph A, Odedo v INEC & 2 ors (2008) 7 SC page 25, Gwede v INEC & 3 ors (2014) LPELR – 23763 (SC).” PER J. I. OKORO, J.S.C.

DECISION OF COURT – DISTINCTION BETWEEN A FINAL AND INTERLOCUTORY DECISION OF COURT

“Generally, a ruling-or order of court which finally disposes of the rights of the parties is a final order. If it does not, then it is interlocutory. In Akinsanya v UBA Ltd (1986) 4 NWLR (pt 35) 273 at 296 paragraphs C – E, this court, in respect of the matter in issue, held as follows:-

In other words, if the court of first instance orders that a matter before it be terminated (struck out) for it has no jurisdiction to determine the issue before it, that is the end of all issues arising in the cause or matter and there is no longer any issues between the parties in that cause or matter that remains for determination in that court. But it would be interlocutory if its order is that it has jurisdiction for there will be reference of the remaining issues in the case to itself. When a Court of Appeal rules and orders that a court of first instance had no jurisdiction in a cause which has been brought before it, that is the end of the matter in so far as that particular litigation goes between the parties in that court of appeal. There is no further reference to the court which has determined the rights of the parties in both cases before the court making the order. And applying that test to the instant case, if the order made by the majority of the Court of Appeal had been made by the trial court itself that that trial court had no jurisdiction that is final. And according to the nature of that order, there is no further reference to that court of trial If the order had been by the trial court that it had Jurisdiction, that is interlocutory according to the nature of the order made as there are issues still to be determined.”

  • PER J. I. OKORO, J.S.C.

LACK OF JURISDICTION – IMPLICATION OF LACK OF JURISDICTION OF COURT ON PROCEEDINGS

“Where a court lacks jurisdiction, its proceedings, and indeed the judgment generated therefrom, no matter how well conducted and/or written are a nullity.” PER J. I. OKORO, J.S.C.

ISSUE OF JURISDICTION – WHEN CAN THE ISSUE OF JURISDICTION BE RAISED?

“It is trite that jurisdiction being a matter of the court’s competence to adjudicate over a matter is so fundamental and radical such that an issue which touches on the jurisdiction of the court can be raised at any stage of the proceedings or even on appeal for the first time. In fact issue of jurisdiction can be raised for the first time at the Apex or final court. It can also be raised by the court suo motu. See Matari & ors v Dangaladima & anor (1993) 3 NWLR (pt 281) 266, (1993) LPELR – 25714 (SC), Abiola & Sons Bottling Co. Nig. Ltd & anor v First City Merchant Bank Ltd & ors (2013) 10 NWLR (pt 1363) 501, (2013) LPELR – 20387 (SC), NRTW & anor v RTEAN & ors (2012) 10 NWLR (pt 1307) 170, (2012) LPELR – 7840 (SC), Usman Dan Fodio University v Kraus Thompson Organisation Ltd (2001) 15 NWLR (pt 736) 301.” PER J. I. OKORO, J.S.C.

JURISDICTION – FUNDAMENTAL NATURE OF JURISDICTION

“May I state also that the fundamental nature of jurisdiction is that it does not exist in vacuum because all courts of law derive their power, authority and therefore jurisdiction either under the constitution or some specific statute. Therefore, no court can assume jurisdiction in the absence of having been constitutionally or statutorily empowered to do so. See Adetayo & ors v Ademola & ors (2010) 15 NWLR (pt 1215) 169, (2010) LPELR – 155 (SC), Lekwot v Judicial Tribunal (1997) 8 NWLR (pt 515) 22. PER J. I. OKORO, J.S.C.

NOTICE OF APPEAL- WHETHER A COURT CAN ASSUME JURISDICTION TO HEAR AN APPEAL IN THE ABSENCE OF A COMPETENT NOTICE OF APPEAL BEFORE IT

“The other aspect of this issue I wish to address relates to the decision of the court below that even where there is no competent notice of appeal before the court, it can assume jurisdiction simply because issue of jurisdiction is to be raised in the appeal. One thing I am sure of is that there can be no appeal before an appellate court without a competent notice of appeal. This much was held by this court in Uwazurike & ors v A.G. Federation (2007) LPELR- 3448 (SC) at page 9 paragraphs A – C as follows:-

It is not in doubt that appeals are creatures of statutes. So, the jurisdiction of the court of Appeal to adjudicate on any matter brought before it is statutory and also guided by the Rules of the court. The failure by any appellant or appellants to comply with the statutory provision or requirement prescribed by the relevant law/laws or Rules (which are in the nature of a subsidiary legislation and perforce, must be obeyed) under which such appeals may be competent and properly before the court, will certainly deprive the appellate court jurisdiction to entertain and/or adjudicate on the matter.

At page 14 of the said report, this court further held that:-

It must be borne in mind always and this is also settled that a notice of appeal is the foundation and substratum of every appeal. Any defect thereto or therein will render the whole appeal incompetent and the appellate court will lack the required jurisdiction to entertain it or any interlocutory application based on the said appeal    once the notice of appeal even as amended was held by the court below to be defective and therefore incompetent, there was nothing left for it to consider in the appeal other than to strike out the appeal in its entirety. I hold that the court below was not entitled and could not consider or deal with any other issue in respect of an incompetent and defective notice of appeal (even as amended).

See also Aviagents Ltd v Balstravest Investment Ltd (1966) l All ER 450, Olowokere y African Newspapers (1993) 5 NWLR (pt 295) 583, Olanrewaju v. B.O.N Ltd (1994) 8 NWLR 8 NWLR (pt 364) 622, Hambe & anor v Hueze & ors (2001) 2 SCNJ 31 at 43, (2001) 4 NWLR (pt 703) 372.” PER J. I. OKORO, J.S.C.

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PRE-ELECTION MATTER- WHETHER THE JURISDICTION OF THE COURT IS OUSTED WHERE A PRE-ELECTION MATTER IS FILED BEFORE THE CONDUCT OF THE ELECTION

“Of note is that this being a pre-election matter which had been filed before the conduct of election, the jurisdiction of the court is not ousted as it does not translate to a post-election dispute.  The effect is that the pre-election matter remains a live issue for determination by the court. See Agbakoba v INEC (2009) ALL FWLR (Pt.462) 1027 at 1077-1079; Adeogun v PDP (2008) 5 SCNJ 363 at 377-378; Gwede v INEC (2014) LPELR- 23763 (SC) 47 at 48; Wambai v Donatus (2014) 14 NWLR (Pt.1427) 223 at 257.”  PER M. U. PETER-ODILI, J.S.C.

LIFE SPAN OF A COURT PROCESS – DUTY OF COURT WHERE THE LIFESPAN OF A COURT PROCESS HAD EXTINGUISHED

“Clearly the Court of Appeal acted outside the guiding principles of law where a matter pertaining to an expired process without leave is before them. The Supreme Court and even the Court of Appeal have not shied away from stating what a court should do faced with a process whose life span had extinguished, I refer to the case of Adelakun v Ecu-Line NV (2006) 5 SCNJ 137 at 145 per Onnoghen JSC (as he then was) thus:-

It is settled law that where an appeal requires leave of court and time within which to lodge the appeal has also expired as in the instant appeal, the intending appellant must, in seeking leave to appeal also pray for extension of time within which to appeal in addition to seeking extension of time within which to apply for leave and leave to appeal. In short, an intending appellant who wishes to seek leave of court on any ground of appeal after the expiration of the statutory periods prescribed under section 31 of the Supreme Court Act, 1960, must seek three substantive prayers, to wit:

(a)     Extension of time to seek leave to appeal;

(b)     Leave to appeal;

(c)     Extension of time within which to appeal;…

In the instant case, appellant filed the notice of appeal outside the prescribed three months and has not brought any application to regularize his position, to wit:

(a)  Praying the court for extension of time to seek leave to appeal;

(b)  Leave to appeal;

(c)  Extension of time within which to appeal.

Since appellant has not regularized his position, the appeal is fundamentally defective and incompetent and liable to be struck out.” PER M. U. PETER-ODILI, J.S.C.

COURT PROCESS – STATUS OF A COURT PROCESS FILED OUT OF TIME AND WITHOUT THE LEAVE OF COURT

“I agree with learned counsel for appellant that the lower court had no business inquiring into the contents of the said cross-appeal after having found that it was filed out of time and without the leave of court. In Adelekan v ECU-LINE NV (supra) at 144-145, the apex court reaffirmed the position of the law that an appellate court cannot exercise any jurisdiction outside its enabling statute and the constitution:

“it is settled law that the exercise of appellate jurisdiction is entirely statutory in that an appellate court derives its jurisdiction from the statute creating it including the constitution and other enabling statutory provisions. The Supreme Court therefore derives its jurisdiction from the Supreme Court Act and 1999 Constitution …

The right of appeal conferred by the Constitution on a party who desires to appeal is initiated by the filing of an notice of appeal since it is the filing of the   notice   of appeal against the judgment complained   of   that   signifies   the   real and constitutional signal of dis-satisfaction against the judgment. See Tukur v Gongola State (1988) 1 NWLR (Pt.68) 39. The Notice of Appeal is therefore the foundation of the appeal.”

  • PER M. U. PETER-ODILI, J.S.C.

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LEGAL PRACTITIONER’S SEAL – STATUS OF A PROCESS WITHOUT A LEGAL PRACTITIONER’S SEAL

“With respect to the absence of a legal practitioner’s seal this court had made the position known that is, that the process is not competent though it is remediable being voidable. See the case of Yaki v Bagudu (2015) 18 NWLR (Pt.1491) 288 at 315-350.1 shall quote the relevant portion thus:-

“The documents in question here purportedly signed and filed by a lawyer in his capacity as the legal practitioner did not have on it “a seal and stamp approved by the Nigerian Bar Association.”

The process so signed and filed is a legal process within the intendment of Rule 10 (2) of the rules. What is the consequence of a legal document signed and filed in contravention of Rule 10 (1) in the Rules?

The answer is as provided in Rule 10(3) to the effect that “the document so signed or filed shall be deemed not to have been properly signed or filed.”

It is my humble view that the legal document so signed and / or filed is not null and void or incompetent like the case   of a court process signed in the name of a corporation or association (even of lawyers). See Okafor v Nweke (2007) 10 NWLR (Pt.1043) sc 521 cited by the learned silk for 2nd Respondent/Cross-Appellant. The document, in terms of rule, is deemed not to have been properly signed or filed, but not incompetent as the 2 respondent assumed.

It has been signed and filed but not properly so signed and filed for the reason that the condition precedent to its proper signing and filing had not been met. It is akin to a legal document or process filed at the expiration of the time allowed by rules or extended by the court. In such cases, the filing of the process can be regularized by extension of time and a deeming order. In the case at hand the process filed in breach of Rule 10(1) can be saved and it’s signing and filing regularized by affixing the approved seal and stamp on it. It is a legal document improperly filed and the fixing of the seal and stamp would make the filing proper in law. Since this was not done the court cannot take cognizance of a document not properly filed and the filing not regularized.

  • PER M. U. PETER-ODILI, J.S.C.

“COURT” – DEFINITION OF A “COURT”

“In section 2 and 19 of the Sheriffs and Civil Process Act, the courts contemplated by the Act have been defined. In section 2 of the Act (Part ii), “court” is defined as follows:

“Court”   includes   a   High   Court   and a magistrate’s court

In section 19, Part iii of the Act, the word “court” is defined thus:

“Court” includes the High Court of the Federal Capital Territory, Abuja or of the State

In section 95 of the Act, the word “court” is further defined as follows:

“Court” means a court to which parts iii, iv, v and vi apply.”

  • PER M. U. PETER-ODILI, J.S.C.

SERVICE OF A WRIT OF SUMMONS OUTSIDE JURISDICTION – CIRCUMSTANCES IN WHICH AN APPLICATION FOR LEAVE TO EFFECT SERVICE OUT OF JURISDICTION MAY BE MADE

“The relevant provision is as stated in Order 6 Rules 13 to 25 of the 2009 Rules’ and therein lies the circumstances under which leave to serve a writ of summons out of jurisdiction may be sought which are thus:-

ORDER 6 RULE 13-

Service out of jurisdiction of a writ of summons or notice of writ of summons may be allowed by the court or a judge in chambers whenever-

  • The whole subject matter of the action is land situated within the jurisdiction (with or without rents or profits); or
  • Any act, deed, will, contract, obligation, or liability affecting land or hereditament situate within the jurisdiction, is  sought to be construed, rectified, set aside or enforced in the action; or
  • Any relief is sought against any person domiciled, or ordinary resident, within the jurisdiction; or
  • The action is founded on tort or other civil wrong committed within the jurisdiction; or
  • Any person out of jurisdiction is a necessary or proper party to an action properly brought against some other party within the jurisdiction; or
  • The action is one brought under the civil aviation act or any regulation made in pursuance of the Act or any law relating to carriage by air.”

 – PER M. U. PETER-ODILI, J.S.C.

SERVICE OF A WRIT OF SUMMONS OUTSIDE JURISDICTION – PROCEDURES TO BE ADOPTED IN FILING AN APPLICATION FOR LEAVE TO EFFECT SERVICE OUT OF JURISDICTION

“After providing the circumstances in which an application for leave to effect service out of jurisdiction may be made, the Rules have gone ahead to stipulate the procedure to be followed in such applications. In that regard, Order 6 Rules 14 to 17 of the Rules states as follows:

  1. (1) Every application for leave to serve a writ or notice on a defendant out of the jurisdiction shall be supported by affidavit or other evidence stating that in the belief of the deponent the plaintiff has a good cause of action and showing in what place or country the defendant is or probably may be found, and the grounds upon which application is made.

(2) No such leave shall be granted unless it is made sufficiently to appear to the court or a judge in chambers that the cause is a proper one for service out of jurisdiction under these Rules.

  1. Any order giving leave to effect service or give notice shall limit a time after such service or notice within which the defendant is to enter an appearance, such time to depend on the place or country where or within which the writ is to be served or the notice given, and on whether the air mail is available to the defendant.”
  2. where leave is given under the foregoing provisions to serve notice of writ of summons out of jurisdiction, the notice shall be served in

(iii) Under   any   rule   of court where under proceedings can be commenced otherwise than by writ of summons;

(c)           Without prejudice to the generality of paragraph  (b) of   this  sub-rule, any summons, order or notice in any interpleader proceedings or for the appointment of an Arbitrator or umpire or to remit, set aside, or enforce an award in an arbitration held or to be held within the jurisdiction;

(d)           Any summons, order or notice in any proceeding duly instituted whether by writ of summons or other such originating process as aforesaid the manner in which writs of summons are served.

  1. (1) Services out of the jurisdiction may be allowed by the court or a judge in chambers of the following processes or of notices thereof, that is to say-

(a)           an    originating    summons,    where the proceedings begun by an originating summons might have been begun by a writ of summons under these Rules;

(b)           any originating summons, petition, notice of motion or other originating proceedings-

(i)           in relation to an infant or lunatic or person of unsound mind, or

(ii)          under any law or enactment under which proceedings can be commenced otherwise than by writ of summons, or

(2) The provisions of rules 14, 15 and 16 of this order shall apply mutatis mutandis to service under this rule.”

– PER M. U. PETER-ODILI, J.S.C.

DECISION OF COURT – STATUS OF A DECISION OF COURT NOT APPEALED AGAINST

“It is the law that a decision of court not appealed against is deemed to be valid and subsisting: See Akpan v Julius Berger (Nig) Plc (2003) FWLR (Pt.182) 1827 a 1838, C-D; Dabo v Abdullahi (2005) 2 SCNJ 76 at 95; Nwabuoku v Onwordi (2006) 5 SCNJ 359 at 371; Nigerian Bank v lntergrated Gas (2005) 1 SCNJ 104 at 116; Ogbimi v Niger Construction (2006) 4 SCNJ 140 at 154; Standard Engineering v N. B. C. I. (2006) 3 SCNJ 1 at 13.” PER M. U. PETER-ODILI, J.S.C.

 

STATUTES REFERRED TO:

Constitutional of the Federal Republic of Nigeria, 1999 (as amended)

Court of Appeal Act, Cap C36 Laws of the Federation of Nigeria, 2004

Electoral Act 2010 (as amended)

Federal High Court (Civil Procedure) Rules 2009

Sheriffs and Civil Process Act

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