Peoples Democratic Party V. Independent National Electoral Commission & Ors (2018)

LAWGLOBAL HUB Lead Judgment Report

OLABODE RHODES-VIVOUR, J.S.C.

The 2nd and 3rd respondents are members of the Peoples Democratic Party (PDP). Both of them contested the party primaries to enable the party choose its candidate for the Ughelli South Constituency in the Delta State House of Assembly, for the General Elections which was held in April 2015. The 3rd respondent claimed that he won the primaries, but his party (the appellant) substituted him with the 2nd respondent.

That is to say according to the 3rd respondent he was replaced by the 2nd respondent. The 2nd respondent’s name was sent to the 1st respondent as the appellant’s candidate for the General Elections, representing Ughelli South Constituency, in the Delta State House of Assembly. The 2nd respondent contested the General Elections and won. He has been, and is still in the Delta State House of Assembly as a member of the Delta State House of Assembly representing Ughelli South Constituency.

Dissatisfied with the appellant’s decision to field the 2nd respondent as its candidate in the General Elections,

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the 3rd respondent as plaintiff filed an originating summons against all the defendants. The defendants were INEC, PDP and R. Izeze. For purposes of clarity, I shall now set out the parties in the Courts’ below. In the trial Court, the 3rd respondent was the plaintiff, while the 1st respondent was the 1st defendant. The appellant was the 2nd defendant, and the 2nd respondent was the 3rd defendant.

The plaintiff/3rd respondent lost. He was the appellant in the Court of Appeal. The respondents were the same as the defendants, in the trial Court. He won in the Court of Appeal.

This appeal is by the Political party the Peoples Democratic Party (PDP).

In the originating summons the plaintiff asked the following, questions:

1. Whether the National Working Committee of the Peoples Democratic Party (PDP) is empowered to conduct primaries and present candidates to Delta State House of Assembly elections scheduled for April, 2015 on behalf of the party.
2. Whether the plaintiff having won and was issued the Certificate of Results as the winner of the Peoples Democratic Party (PDP) House of Assembly, Ughelli South Constituency primary election conducted by the National working Committee of

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the 2nd defendant, can be surreptitiously substituted with the 3rd defendant, by the 1st and 2nd defendants, as the candidate of the Peoples Democratic Party (PDP) for the Delta State House of Assembly Ughelli South Constituency elections in total disregard of the report of the 2nd defendants Electoral Panel and Electoral Appeal Committee for the conduct of the Delta State House of Assembly primaries held on 29 November, 2014, the 1999 Constitution (as amended) and the Electoral Act 2010 (as amended).

3. Whether the substitution of the plaintiff’s name, FESTUS UTUAMA with the name of the 3rd defendant (MR REUBEN IZEZE) as the candidate of the Peoples Democratic Party (PDP) after the plaintiff won the primary election of the Peoples Democratic Party (PDP) to the Delta State House of Assembly Ughelli South Constituency, on 29 November 2014 is not in violation of the Peoples Democratic Party (PDP) Constitution and the plaintiff’s right under the 1999 Constitution (as amended) and the Electoral Act 2010 (as amended).

And sought the following reliefs:

1. A declaration that the plaintiff having won and received the certificate of return as the

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winner of the Ughelli South Constituency, Delta State House of Assembly primaries conducted by the National Working Committee of the 2nd defendant, is the rightful and lawful candidate of the Peoples Democratic Party (PDP) for the Delta State House of Assembly election slated for 11 April, 2015.

2. A declaration that the 1st and 2nd defendants surreptitious substitution of the plaintiffs name with the 3rd defendant’s name as the candidate of the Peoples Democratic Party (PDP) for the Delta State House of Assembly Ughelli South Constituency election slated for 11 August, 2015 in total disregard of the result of the primaries, report of the Peoples Democratic Party (PDP) Electoral Appeal panel is contrary to the Constitution of the Peoples Democratic Party (PDP) Constitution (as amended) and therefore unlawful, illegal and of no effect whatsoever.
3. A declaration that any step taken by the defendants in furtherance of the unlawful substitution of the Plaintiff with the 3rd defendant in disregard of the result of the primaries conducted by the National Working Committee of the Peoples Democratic Party (PDP), report of the Peoples Democratic

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Party (PDP) Electoral Panel, Electoral Appeal Panel, the PDP Constitution and Electoral Act 2010 (as amended) is a nullity.

4. An Order reinstating the name of the plaintiff as the lawful and rightful candidate of the Peoples Democratic Party (PDP) for the Delta State House of Assembly Ughelli South Constituency election slated for 11 April 2015.
5. An order nullifying the election of the 3rd defendant into the Delta State House of Assembly, Ughelli South Constituency held on 11 April, 2015.
6. An order nullifying and or setting aside the certificate of return issued by the 1st defendant to the 3rd defendant on the basis of the election held on the 11 April 2015 on the ground that the said election amount to a nullity.
7. An order directing the 1st defendant to issue a certificate of return to the plaintiff as the duly elected member of the Delta State house of Assembly representing Ughelli South Constituency.
8. An order directing the 3rd defendant to refund all monies, salaries, allowances and or benefits collected and received by him as a member representing Ughelli South Constituency in the Delta State House of Assembly from the

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date of swearing in until judgment is delivered.

9. General damages against the defendants jointly and severally in the sum of N500,000,000.00 (Five hundred Million Naira).

Affidavit in support of the amended originating summons, counter-affidavit and reply affidavit were filed.

The 2nd and 3rd defendants i.e. the PDP and R Izeze now the appellant and the 2nd respondent filed memorandum of conditional appearance.

A conditional appearance is an appearance under protest and usually means an appearance to object to the Court’s jurisdiction. They subsequently filed similar Notice of Motion on 12 November 2015 and 26 November, 2015 praying the Court for an order striking, out or dismissing, the suit in its entirety.

The grounds for the application are:

(a) The main or principal relief in thus suit relate to the 1st and 2nd defendants who are not agencies of the Federal Government of Nigeria and to the extent this Honourable Court has no jurisdiction to entertain this suit.

(b) The cause of action which is the nomination of the 3rd defendant as the candidate of the 2nd vide a list of candidates submitted to INEC on

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26/12/2014, had occurred more than three months before the initiation of this suit which was initiated on 9/4/2015, more than three months after the 1st defendant had received the list of nominated candidates.

(c) The suit contains facts which are hotly disputed and which cannot be resolved ordinarily without the recourse of necessity of calling oral evidence. It is therefore not a suit that could or should have been commenced vide originating summons procedure.

(d) The originating summons being the originating process purportedly taken out by counsel named Ama Etuwewe without any seal issued by the NBA affixed on the process is liable to be set aside.

(e) Reliefs 5 and 6 seeking to nullify the House of Assembly election of 11/4/2015 can only be granted by an election petition tribunal set up under Section 285 of the Constitution of Nigeria 1999 (as amended).

(f) The originating summons which was issued out of Delta State for service on the 1st and 2nd defendants in Abuja the Federal Capital Territory does not contain the mandatory endorsement as prescribed by law.

Counsel on both sides filed written addresses, and in a

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considered judgment delivered on 5 April 2010, the learned trial judge, Obile J of a Federal High Court (Warri Judicial Division) upheld the 2nd and 3rd defendants objection. His lordship had this to say:

” this Court lacks the jurisdiction and competence to entertain and determine this suit because the amended originating summons is invalid, null and void and ought to be struck out and I so hold..

The learned trial judge found the suit to be incompetent and struck it out because the Originating summons was not properly issued for service outside the jurisdiction of the Court and that the action was in breach of Section 2 (a) of the Public Officer Protection Act and so statute barred.

The plaintiff (3rd respondent) lodged an appeal. It has heard by the Court of Appeal (Benin Judicial Division)

The appellant and 3rd respondent filed separate notices of preliminary objection and also cross-appeal. The preliminary objections were dismissed. The Court of Appeal did not consider the cross appeals. It heard the main appeal wherein it considered only an issue. It reads,

“Whether the lower Court was right when it struck out

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the appellants suit on the ground that it lacked the necessary jurisdiction to entertain the claim as postulated in the amended originating summons dated and filed on 21/5/2015.

In a considered judgment delivered on 12 June 2017, the Court of Appeal set aside judgment of the trial Court when it said:

I accordingly set aside the order of the lower Court striking out the suit of the appellant in Suit No. FHC/WR/CS/53/2015. I hold that the originating process by the appellant was properly issued and served on the 1st and 2nd respondents in compliance with the provision of Order 6 Rules 13-17 of the Federal High Court Civil Procedure Rules, Section 97 of the Sheriff and Civil Process Act . By this therefore, I conclude that the appeal is meritorious and it is hereby allowed.

The judgment of the lower Court in suit No. FHC/WR/CS/53/2015 delivered on 5 April 2016 is hereby set aside.

The suit is hereby remitted to the Hon. Chief Judge of the Federal High Court for reassignment to another judge of the Federal High Court For expeditious determination on merit

This appeal by the Political Party

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(PDP) is against that judgment. Briefs were filed and exchanged by counsel. The appellant’s brief was filed on 29 September, 2017 by its learned counsel Mr. E.T. Omonemu, while the 3rd respondent’s brief was filed by its learned counsel Mr A Etuwewe on 12 October 2017.

Learned counsel for the 1st respondent, Mr A Umar who did not announce himself as appearing for the 1st respondent informed the Court that he was aware of this appeal, but that he did not file a brief. Learned counsel for the 2nd respondent, Mr. Ehighelua did not file a brief.

Learned counsel for the appellant, Mr. E.T. Omonemu formulated four issues for determination of the appeal. They are:

1. Whether the Court of Appeal was right in holding that the originating summons in this case was properly issued and served in view of the clear provisions of the Sheriff and Civil Process Act.
2. Whether the Court of Appeal was right in holding that the trial Court had jurisdiction to try the matter on the merit without first reversing, quashing and/or setting aside the decision of the trial Court that the action was statute barred.
3. Whether the Court of Appeal has not breached

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the right of the appellant to fair hearing and occasioned a miscarriage of justice by refusing and/or neglecting to consider and make a pronouncement on all the issues properly canvassed before it.

4. Whether the Court of Appeal was right in ignoring, refusing, neglecting and/or failing to consider or make a pronouncement on the cross appeal of the appellant.

Learned counsel for the 3rd respondent, Mr. A. Etuwere adopted the issues formulated by the appellant.

At the hearing of the appeal on 17 January 2018 learned counsel for the appellant, E.T Ononemu Esq adopted the appellants brief filed on 29 September, 2017 and urged the Court to allow the appeal.

Learned counsel for the 3rd respondent, A.V. Emuvakpor Esq adopted the 3rd respondents brief filed on the 12 October 2017, and urged the Court to dismiss the appeal.

Learned counsel for the 1st and 2nd respondents A.A. Umar, Esq and I.Ehighelua Esq had nothing to urge since no briefs were filed by them.

The first issue formulated by the appellant was the only issue considered by the Court of Appeal.

The issue asks whether the originating summons in this case was

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properly issued in accordance with Section 97 of the Sheriffs and Civil Process Act. The trial Court declined jurisdiction to hear the 3rd respondents/plaintiffs case because the originating summons for service out of the jurisdiction of the trial Court (i.e. in Abuja) was not properly endorsed in the manner required by Section 97 of the Sheriff and Civil Process Act and the 3rd respondent did not obtain leave to issue and serve the originating process on the appellant and 1st respondent. The Court of Appeal reversed the decision of the trial Court, holding that the originating summons was properly issued and served in accordance with Section 97 of the Sheriffs and Civil Process Act.

I have carefully considered the four issues formulated by the appellant and adopted by the 3rd respondent. I consider the 1st issue to be very fundamental, crucial, and decisive in that if it is found that the originating summons in this suit was not issued in accordance with the provisions of Section 97 of the Sheriff and Civil Process Act, the Court would have no jurisdiction to hear the case and it will become unnecessary to consider any of the other issues.

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The issue reads,

Whether the Court d Appeal was right in holding that the originating summons in this case was properly issued and served in view of the clear provisions of the Sheriff and Civil Processes Act.

When a case is called and the defendant is absent, it is the duty of the Court to find out if the defendant was served. If he was not served the case is adjourned to another date for service to be properly effected on the defendant.

This is premised on the long settled position of the law that failure to give notice of proceedings to an opposing party in a case where service of process is required is a fundamental omission (except where proceedings are exparte) which renders the proceedings void because the Court would have no jurisdiction to entertain such a suit. See Haruna v. Ladeinde (1987) 4 NWLR (Pt. 67) p. 941, Obimonure v Erinosho (1966) 1 ANLR p. 250.

When an originating process is served on the defendant and he has an objection to it, he is expected to either-

(a) enter an appearance on protest, or

(b) enter a conditional appearance, and

(c) file a Notice Motion asking the Court to set aside the purported writ and service of same on the ground of

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originating process and service being invalid.

If the defendant does not follow the above procedure he cannot question the originating process or service on appeal.

In this case the appellant and the 1st respondent as 1st and 2nd defendants complied with (a), (b) and (c) above when they filed similar objection to question the originating summons in this suit. They were thus correct in the procedure adopted in the trial Court.

The issue is not whether there was proof of service of the Originating summons on the appellant and 1st respondent whose addresses for service are in Abuja outside the jurisdiction of a Warri Federal High Court, but whether

(a) the originating summons was properly issued.

(b) the mandatory endorsement required by law were placed on the process.

Learned counsel for the appellant observed that the originating summons served outside jurisdiction in Abuja on his client and the 1st respondent were null and void since the process was issued without leave, and the mandatory endorsements required by law were not placed on the said process. Relying, on Auto Import Export v Adebayo (2005) 19 NWLR (Pt. 959) p. 44

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Owners of M.V. Arabella v N.A.I.C (2008) 1 NWLR (Pt. 1097) p. 182.

He urged the Court to resolve this issue in favour of the appellant, set aside the decision of the Court of Appeal and restore the decision of the trial Court. Learned counsel for the 3rd respondent observed that leave is not required to file an originating summons in the Federal High Court, further observing that the Court of Appeal was right to set aside and overrule the decision of the trial Court.

Learned counsel observed that the originating summons for service outside jurisdiction was properly endorsed for service on the appellant and 1st respondent (i.e 1st and 2nd defendants).

Reliance was placed on Enterprise Bank Ltd v Aroso (2014) 3 NWLR (Pt. 1394) p. 256.

He urged the Court to resolve this issue in favour of the 3rd respondent and affirm the decision of the Court of Appeal and dismiss this appeal.

I shall consider whether there was compliance with Section 97 of the Sheriff and Civil Process Act. If there was non-compliance, that would bring the hearing of this appeal to an end.

Section 97 of the Sheriff and Civil Process Act states that:

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Every writ of summons for service under this part out of the State or the Capital Territory which it was issued shall in addition to any other endorsement or notice required by the law of such State or the Capital Territory have endorsed thereon a notice to the following effect:

This summons (or as the case may be) is to be served out of the State (as the case may be) and in the . State (as the case may be).

Where the words used in a statute are clear and unambiguous they must be given their ordinary meaning. See Mobil v FBIR (1977) 3SC p53, Toriola v. Williams (1982) 7 SC P. 27.

It is so obvious after reading, Section 97 of the Sheriff and Civil Process Act that it is couched in mandatory terms. It is abundantly clear that any service of a writ without the proper endorsement as stipulated by Section 97 supra, is not a mere irregularity but is a fundamental defect that renders the writ incompetent.

There can be no doubt whatsoever that by virtue of Section 97 of the Sheriffs and Civil Process Act, every writ of summons (or originating process) for service out of the State in which it was issued must, in addition to

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any endorsement of notice required have endorsed on it, a notice indicating, that the summons is to be served out of the State and in which State it is to be settled. Once again failure to endorse the required notice on an originating process for service outside a State where it was issued is not a mere irregularity but a fundamental defect that renders the originating process incompetent. A Court would be deprived of jurisdiction to hear the case if satisfied that there is non-compliance with Section 97 of the Sheriffs and Civil Process Act. See Odua Investment Co. Ltd v. Talabi (1997) 10 NWLR (pt. 523) p.1, Nwabueze & Anor v Justice Obi-Okoye (1988) 4 NWLR (Pt. 91) p. 664. Skenconsult (Nig) Ltd v. Ukey (1981) 12 NSCC p.1

The Courts have no discretion under Section 97 of the Sheriffs and Civil Process Act. Once the claimant fails to comply with the mandatory provision in Section 97 supra the Court would no longer have jurisdiction to hear the suit. It is fundamental that the claimant obeys and complies fully with the provision. No valid appearance can be entered by the defendant to an originating process that does not have the mandatory

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endorsement, except to enter conditional appearance.

I have examined the originating summons and the subsequent amendment to it and I am satisfied that there is no endorsement on it for service in Abuja outside Delta State. The originating summons is invalid, worthless and void. There would be no need for me to consider whether leave was obtained, since non-compliance with Section 97 of the Sheriffs and Civil Process Act brings the hearing of this appeal to an end. The Court of Appeal was wrong, while the High Court was right. Once there was non-compliance with the provisions of Section 97 of the Sheriffs and Civil Process Act the trial Court would have no jurisdiction to hear the case.

Before I consider this judgment I must explain Enterprise Bank Ltd Ltd v. Aroso (2014) 3 NWLR (Pt. 1394) p. 256.

It has become necessary for me to do so since learned counsel for the 3rd respondent relied heavily on it as authority for Section 97 of the Sheriffs and Civil Process Act.

Section 97 of the Sheriffs and Civil Process Act was not considered at all in Enterprise Bank Ltd v Aroso Supra.

In the case the issue was whether the Writ of Summons for

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service out of jurisdiction in Ondo State was done in compliance with Order 5 Rule 1 of the High Court (civil Procedure) Rule of Ekiti State.

I must remind counsel that a case is authority for what it decides. Relying on a case without relating it to the facts that induced it will amount to citing the case out of the proper con. The whole purpose of citing, a case is for the law on it to be known. In view of the findings made by this Court it is no longer necessary to consider the other issues formulated by the appellant and adopted by the 3rd respondent.

This appeal is allowed. The trial Court has no jurisdiction to hear the claims of the 3rd respondent/plaintiff, and this is due to the fact that there was failure to comply with the provisions of Section 97 of the Sheriff and Civil Process Act. The judgment of the trial Court is correct and restored, while the judgment of the Court of Appeal is hereby set aside.

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SC.766/2017