Hon. (Mrs) Dorathy Mato V. Hon. Iorwase Herman Hember & Ors (2017)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

This appeal is against the judgment of the Court of Appeal sitting in Makurdi delivered on 11th July, 2016 wherein the Lower Court resolved issues raised in the 2nd respondents Notice partly in favour of the 2nd respondent but dismissed the appeal for lacking in merit. A brief statement of facts upon which this appeal is predicated are as follows:

The appellant herein, as plaintiff in the trial Court, issued an Originating Summons against the respondents herein, as defendants, and submitted the following questions for the determination of the trial Court, to wit:

1. Whether in view of the plaintiff’s petition dated 11th December, 2014 against the 1st defendant and the 2nd defendants appeal committee and the upholding of same by the 2nd defendants National Assembly Primaries Election Appeal Committee conveyed in its report dated 16th December, 2014 and the provisions of articles 13.4(ix), 14(iii), and (viii), 18(iv) and 20(iv)(d) of the APC Constitution 2014 (as amended), only the plaintiff is the duly competent qualified and nominated

candidate of the 2nd defendant for VANDEIKYA/KONSHISHA Federal Constituency Elections fixed for 28th March, 2015

2. Whether in the face of numerous illegalities/irregularities pertaining to absence of the official list of electoral committee members, absence of official list of delegates, absence of list of aspirants, adoption to open ballot system of voting instead of secret ballot, omission of names of two delegates each from four (4) wards in Vandeikya Local Government and exclusion of delegates from Mbakyaha ward of Vandeikya Local Government from voting and the tense atmosphere and lack of proper accreditation coupled with the participation of Swende Ager and Dickson Faasema from Benue State APC office, contained in the report of the 3rd defendants monitoring committee dated 11th December, 2014, it is legal, regular and competent to present the 1st defendant as the duly nominated candidate of 2nd defendant for Vandeikya/Konshisha Federal Constituency Election slated for 28th March, 2015 in view of Articles 7(viii) and (ix), 9.3(iv) of the APC 2014 Constitution (as amended), Articles 4.A(7) and (13) I and II followed by General Provision and

Articles 15 of the 2014 APC Guidelines for nomination of candidates for public office

3. Whether on a community reading of the provisions of Articles 9(1)(i), (ii), (iv) and (v), 9.3(i) and (ii) of APC 2014 Constitution (as amended), Articles 3, 4(A)(i) and (B), and 5 of the 2014 APC Guidelines for the Nomination of Candidates for public for public office catering for membership of an aspirant and its incidents and the votes and proceedings of the House of Representatives (No: 29) of 16th December, 2014 (pp. 516-517 thereof) Wherein the defection of the 1st defendant to 2nd defendant from the Peoples Democratic Party (PDP) was announced and published, the 1st defendant was eligible, qualified and competent to participate in the 2nd defendants primary elections from 7th 10th December, 2014 and be declared duly nominated candidate of 2nd defendant for the 28th March 2015 National assembly Elections
4. Was it legal, regular and valid for the 2nd defendant to conduct its primaries at HAF HAVEN HOTEL MAKURDI outside the Vandeikya/Konshisha Federal Constituency in spite of the mandatory provisions of Section 87(4)(c)(i), Section 87(7) of the

Electoral Act 2010 (as amended) read with Articles 14.ii of the 2014 APC Guidelines for Nomination for public office, where 1st defendant was declared nominated by 2nd defendant in the presence of 3rd defendant

Consequently, the appellant claimed against the respondents jointly and severally the following declaratory reliefs, thus:-

1. A declaration that by virtue of the report of the 2nd defendants Appeal committee dated 16th December 2014 and the combined provision of Articles 13.4(ix), 14(iii) and (viii) and 20(iv)(d) of the APC Constitution 2014 (as amended) only the plaintiff is the duly qualified and competently nominated candidate of the 2nd defendant for the Vandeikya/Konshisha Federal Constituency election fixed by 3rd defendant against 28th March 2015.
2. A declaration that in the face of numerous illegalities/irregularities manifest and specified by the 3rd defendants Monitoring Team Report dated 11th December, 2014 and particularized therein it is illegal, irregular and incompetent for 2nd defendant to present 1st defendant as its nominated candidate to 3rd defendant for the Vandeikya/Konshisha Federal Constituency

Election slated for 28th March 2015 having reference to the combined provisions of Articles 7(viii) and (ix), and 9.3(iv) of the APC Constitution 2014 (as amended) read with Articles 4(A)(7) and (B), 14.II followed by General Provisions and Articles 15 of the 2014 APC Guidelines for Nomination of Candidates for public office.

3. A declaration that on a community reading of the combined provisions of Articles 9(1)(i), (ii), (iv) and (v), 9.3(i), 9.4(i) and (ii) of the APC 2014 Constitution (as amended) with Articles 3, 4(A)(1), 4(B) and 5 of 2014 of APC Guidelines for the Nomination of candidates for public office, governing party membership and its incidents and taking into account the votes and proceedings of the House of Representatives of 16th December 2014 on which date 1st defendant defected on the floor of the House from PDP to APC, the 1st defendant was ineligible, unqualified and incompetent to participate in the 2nd defendants primaries from 7th 10th December 2014 and therefore his participation, and purported nomination as candidate of 2nd defendant and subsequent acceptance and recognition by 3rd defendant is illegal,

irregular, invalid, null and void.

4. A declaration that having due regard to the combined mandatory provisions of Section 87(4)(c)(i), Section 87(7) of the Electoral Act 2010 (as amended) and Articles 14.II of the 2014 APC Guideline for Nomination of candidates for public office stipulating that members shall assemble at the Federal Constituency Headquarters and vote by secret ballot, it was illegal, irregular, invalid, null and void for the 2nd defendant to conduct its primaries at HAF HAVEN HOTEL, MAKURDI, Benue State capital, far outside the Vandeikya/Konshisha Federal Constituency Headquarters located at Vandeikya town, in Vandeikya Local Government.
5. An order directing the 3rd defendant to move, strike out or delete the name of the 1st defendant from the list of candidates presented to it by 2nd defendant and insert or enter the name of plaintiff as the duly nominated candidate of the 2nd defendant for the Vandeikya/Konshisha Federal Constituency Election fixed for 28th March 2015 or on any other date to be determined by 3rd defendant.
6. An order directing the 2nd defendant to present the name of plaintiff to 3rd defendant as the duly

nominated candidate for Vandeikya/Konshisha Federal Constituency Election to be held on the 28th March 2015 and consequently direct the 3rd defendant to reflect plaintiffs name in all its requisite electoral processes and forms, etc.

7. A perpetual injunction restraining the 1st defendant from parading himself/holding himself out in any manner or guise whatsoever as the nominated candidate of the 2nd defendant for the Vandeikya/Konshisha Federal Constituency for the 28th March 2015 Elections fixed by the 3rd defendant.
8. A perpetual injunction restraining the 2nd defendant from associating with, dealing with, or recognizing the 1st defendant as her candidate for the Vandeikya/Konshisha Federal Constituency in respect of the impending 28th March 2015 Elections fixed by 3rd defendant.
9. A perpetual injunction restraining the 3rd defendant from continuing to deal with or otherwise recognize 1st defendant as the nominated candidate of 2nd defendant for the Vandeikya/Konshisha Federal Constituency Election to be held on 28th March 2015.

Upon service on the 1st respondent of the appellants application, the 1st respondents

counsel on 21st September, 2015 filed a notice of preliminary objection to challenge the competence of the action and thereby sought an order of the trial Court striking out or dismissing the action for want of jurisdiction the action being allegedly statute barred. The said objection, which is a point of law, was predicated on the grounds that:-

1. The Plaintiff/Respondent ought to have filed this suit before the State High Court, Makurdi, Benue State and not the Federal High Court.
2. The Plaintiff/Respondent (sic) suit having been filed on the 31st of March, 2015 after the conduct of the election that saw the return of the 2nd defendant was statutorily barred from so doing.
3. The Plaintiff/Respondent’s suit as presently constituted can only be maintained at the State High Court of Benue State and not Federal High Court sitting at Makurdi, Benue State.
4. The Plaintiff/Respondents suit discloses no reasonable cause of action against the 2nd defendant.
5. This action is vexatious, speculative, a gross abuse of Court process and brought in bad faith.

The application of the appellant was also served on the 2nd respondent.

On 21st September, 2015 the 2nd respondent’s counsel equally filed an objection by way of motion on notice for an order setting aside the service of the Originating Summons on the 2nd respondent, on the following grounds:-

(1) The leave of this Honourable Court is required for the issuance of the Originating summons in this suit before serving same on the defendants.

(2) The Plaintiff failed to obtain the requisite leave of the Court to issue the Originating Summons on the defendant and has therefore not fulfilled the condition precedent to conferring jurisdiction on the Honourable Court.

(3) The suit is not initiated by due process of law.

(4) The failure of the plaintiff to first obtain the leave to issue the Originating Summons robs the Honourable Court of the jurisdiction to hear this suit.

Written addresses were filed and exchanged by the respective learned counsel in support of and against the appellants Originating Summons, the 1st respondents preliminary objection and the 2nd respondent’s objection by way of Motion on Notice. When the matter came up for hearing on 22nd October, 2015, the objections of

the 1st and 2nd respondents were argued. Learned counsel for the parties adopted their respective written addresses in furtherance of their opposing positions.

The learned trial judge, in his ruling delivered on 19th November, 2015, upheld the objections and dismissed the appellant’s suit in the following words:-

“Consequent upon this, even if the appellant has a good case which she does, it is caught by time and is thus left with an empty cause of action.”

Dissatisfied with the decision of the learned trial judge, appellant appealed to the lower Court. In dismissing the appeal the Court below, in its judgment delivered on the 11th July, 2016, concluded thus:-

“The general election itself had been conducted on the 28th of March, 2015. Therefore it is unarguable that her action was no longer qualified to be referred to as a pre – election matter. Consequently, the trial Court could not be vested with the requisite jurisdiction to adjudicate upon the action of the appellant under Section 87(9) of the Electoral Act, after the general election has been conducted and concluded. Accordingly, the second prong of the 2nd respondents Notice is

hereby resolved in favour of the 2nd Respondent and against the Appellant.

Being further dissatisfied with the judgment of the lower Court, appellant has again appealed to this Court. Notice of appeal was filed on 22nd July, 2016 which contained twelve grounds of appeal out of which three have been distilled for determination.

On 29th March, 2017 when this appeal was heard, learned counsel for all the parties identified, adopted and relied on their respective briefs. In the appellants brief signed by Kenechukwu O. Azie Esq and deemed properly filed on 8/3/17, the three issues formulated by him are as follows:-

1. Whether the lower Court was right when it held that the Originating Summons filed by the Appellant on the 26th March, 2015 was incompetent for failure to seek leave to serve the Originating Summons outside jurisdiction before the General Election which was held on 28th March, 2015.
2. Having regard to the Appellant’s state of pleadings and documentary evidence at the trial Court, whether the lower Court was not wrong when it determined Appeal No. CA/MK/21/2016 without recourse to the questions for determination as well as

the issues for determination placed before it by the Appellant in the Originating Summons filed by the appellant at the Trail Court was incompetent.

3. Whether considering the facts and circumstance of this Appeal, the miscarriage of justice and the breach of the appellants right to fair hearing, when the lower Court disregarded the contents of Exhibit 1, Exhibit 1A, Exhibit 2, Exhibit 3. Exhibit 4, Exhibit 5, Exhibit 5A and Exhibit 6, this Honourable Court can invoke its powers under Section 22 of the Supreme Court Act to hear this appeal on its merit

In the brief settled by Kolawole Olowookere Esq., deemed properly filed and served on 8/3/17, two issues are formulated for determination. The issues are:-

1. Whether the instant suit to this appeal is not incompetent for failure to obtain the leave of the trial Court and failure to comply with the provision of Section 97 of the Sheriff and Civil Process Act Cap 56 Vol. 14 Laws of the Federation 2004.
2. Whether the conditions for the invocation of the powers of Supreme Court under Section 22 of the Supreme Court Act are present in this appeal.

The 2nd respondent also decoded two issues

as contained in its brief filed on 19/1/17 by Tochukwu Peter Tochukwu Esq. though deemed properly filed and served on 8/3/17. They are couched as follows:-

1. Whether the Supreme Court will ordinarily interfere with the concurrent findings of the Courts below that the Appellants case is statute barred
2. Whether the restriction of the two Courts below to the issue of jurisdiction raised by the 2nd Respondent without delving into substantive matter occasioned a miscarriage of justice that breached the Appellants right to fair hearing.

Usman O. Sule Esq, learned counsel for the 3rd respondent who signed their brief deemed properly filed and served on 8/3/17 also distilled two issues for determination thus:-

1. Whether the Court of Appeal was right in holding that the Federal High Court lacked jurisdiction to entertain the Appellants’ (sic) for being out of time
2. Whether the Court of Appeal, having found that the Federal High Court lacked the jurisdiction to entertain the case, ought to have proceeded to determine the case on its merit

Before I take any further step in this matter, let me sort out the notice of

preliminary objection contained on page two (2) of the 1st Respondents brief of argument. The said notice states:-

“NOTICE OF PRELIMINARY OBJECTION

The 1st Respondent herein shall raise a preliminary objection to the hearing/competence of the instant appeal in the following terms:-

1. That Grounds of Appeal contained in the Notice and Grounds of Appeal are of facts and mixed law and facts and therefore grossly incompetent as no leave of this honourable Court was obtained to file same.
2. The Brief of Argument containing issues for determination distilled from the incompetent gross of appeal is also incompetent.”

Arguments on the two grounds of objection are contained from page four (4) Para 3.11 to page 6 Paragraph 3.17 of 1st respondent’s brief of argument. However, on 29th March, 2017, at the hearing of this appeal, these arguments were withdrawn and struck out. That being the case, the preliminary objection had been abandoned. It is accordingly struck out.

Notwithstanding the striking out of the preliminary objection of the 1st respondent, I wish to observe that the issues that were litigated from the trial Court to the

Court of Appeal relate as to the competence of the Originating Summons filed by the appellant at the trial Court. The trial Court held that the suit was incompetent and this was affirmed by the lower Court. Thus, there was no decision on the merit of the substantive suit. Therefore the grounds of appeal must relate to and attack the judgment or ruling of the lower Court. Any ground of appeal which does not attack the judgment of the Court below is to say the least, incompetent and liable to be struck out. See Ekunola v CBN (2013) 15 NWLR (pt 1377) 224, Asogwa v PDP (2013) 7 NWLR [pt 1353) 207.

Consequently, issues for determination must be formulated from the grounds of appeal. They must be based on, related to or arise from the grounds of appeal. I need to emphasize, however, that only competent grounds can give birth to competent issues. Any issue which does not arise from competent grounds of appeal or from any ground of appeal at all, is incompetent and may be struck out. See Ndulue v Ojiakor (2013) 8 NWLR (pt 1356) 311, Eyigebe v Iyaji (2013) 11 NWLR (pt 1365) 407.

In the instant appeal, it seems to me and I think I am correct that only issue No.1

formulated by the appellant is competent as it arises from grounds 3, 4, 5, 7, 8 and 12 of the grounds of appeal which attack the judgment of the court below. However, grounds 1,2,6,9, 10 and 11 on the other hand wherein issues two and three are formulated do not arise from or attack any portion of the judgment of the lower Court. What this translates to is that grounds of appeal Nos. 1, 2, 6, 9, 10 and 11 are incompetent and are hereby struck out. In consequence, issues two and three formulated from these grounds of appeal are also incompetent and are struck out. Issue 2 in 1st respondent’s brief is also struck out not being distilled from a competent ground of appeal.

Having struck out issues two and three, only issue one is left. This appeal shall, therefore, be determined on the said issue one only. This issue is in tandem with issue one of the 1st respondents, issue two of 2nd respondent and issue three of the 3rd respondents.

In his submission on the issue, the learned counsel for the appellant referred the Court to pages 3 – 117 of the Record of Appeal and opined that contrary to the impression being created by the 2nd respondent that

the Originating Summons culminating in this appeal was filed after the General Elections, the said Originating Summons was in fact filed on 26th, March, 2015 while the election was held on 28th March, 2015. Learned counsel submitted that from a portion of the judgment of the lower Court on pages 48 – 50 of the record, it is crystal clear that the Court concluded that the originating Summons filed at the registry of the trial Court was incompetent because leave to serve the summons on the defendants outside jurisdiction was granted after the conduct of the general election. He contended that the Court below failed to cite any case law or statute to arrive at such enormous conclusion. He submitted that once a pre – election matter is filed before the commencement of the general election, such action is deemed competent relying on Nobis-Elendu v INEC (2015) 16 NWLR (pt 1485) 228, Salim vs CPC (2013) 6 NWLR (pt 1351) 501.

Learned counsel further contended that in filing the Originating Summons, appellant complied with Order 3 Rule 1 of the Federal High Court (Civil procedure) Rules 2009 and Section 87 (10) of the Electoral Act 2010 (as amended). It is his

argument that after filing the Originating Summons on 26th March, 2015, appellant filed various applications before the trial Court and that one of such applications was a motion ex – parte filed on 7th April, 2015 for leave to serve the Originating process outside the jurisdiction of the Court on the respondents. He submitted that the grant of the application to serve outside jurisdiction on 23rd April, 2016 cannot be said to be the date the Originating summons was filed.

In conclusion, learned counsel opined that appellant complied with the provisions of Order 6 Rule 14 of the Federal High Court (Civil Procedure) Rules 2009 and Sections 96 and 97 of the Sheriffs and Civil Process Act, Cap 56 Vol. 14 LFN 2004 in obtaining leave to issue and serve the originating summons on the respondents. Learned counsel finally urged the Court to resolve the issue in favour of appellant.

In his response, learned counsel for the 1st respondent, also referring to Order 6 Rule 14 of the Federal High Court (Civil Procedure) Rules 2009 and Section 97 of the Sheriff and Civil Process Act (Supra), submitted that the Originating Summons did not comply with the law. He,

however, conceded that the leave to serve the process on the respondents was sought and obtained on 23/4/15. He urged the Court to resolve the issue against appellant.

Learned counsel for the 2nd respondent also submitted that it was regular for the lower Courts to restrict themselves to the issue of jurisdiction as raised by the 2nd respondent without delving into the substantive matter. He then went on a long lecture on the importance of jurisdiction citing several cases including Amadasun v Ume (2007) 13 NWLR (pt 1051) 214 and Ibrahim & Ors vs. Gaye & Ors (2003) FWLR (pt 171) 1559. He urged the Court to resolve issue against appellant.

In his own contribution, learned counsel for the 3rd respondent submitted that the lower Court was right when it held that appellant’s suit became ignited on the 23rd April, 2015, the day appellant obtained the leave of the trial Court to issue and serve her Originating Summons on the respondents, who were resident outside the jurisdiction of the trial Court. According to him, the suit of the appellant was no longer qualified to be termed pre-election matter; relying on the case of Hassan vs. Aliyu (2010) 17 NWLR (pt 1223) 547 .

Learned counsel further submitted that leave of Court gives life to an Originating Summons as it is a condition precedent for issuance and service of the process, referring to the cases of M. V. Arabella vs. NAIC (2008) 11 NWLR [pt 1097] 182 and A.G. Kwara State vs. Adeyemo (2017) 1 NWLR (pt 1546′) 210 at 253 – 254. He then urged the Court to resolve issue against appellant.

In the reply brief to the 2nd respondent’s brief, the learned counsel for appellant submitted that the case of M. V. Arabella v NAIC (supra) does not apply in this case, for whereas in that case, no leave was obtained, in the instant case, leave was clearly sought and obtained. I shall discountenance other issues thrown up in the other reply briefs because they relate majorly to issues which have been struck out earlier in this judgment.

I need to point out here that this case was decided at the lower Court based on the Respondents Notice filed by the 2nd respondent. There were two grounds and, for ease of reference, I shall reproduce them here:,

”1. The Suit at the Court below ought to be filed at the State High Court Makurdi, Benue State High Court

Makurdi, Benue State not Federal High Court, Makurdi Benue State and was liable to be struck out on GROUND 3 of the 2nd Respondents Notice of Preliminary objection and this ground was duly canvassed at the Court below.

2. The suit at the Court below was statute – barred in that the originating summons against the 2nd respondent was to be served outside jurisdiction and the leave for the issuance of the originating summons was obtained on the 31st March, 2015 after election had been concluded and returns made on the 30th of March, 2015 thereby making the Appellants case a post-election matter actionable at the Election Petition Tribunal not regular Courts and this ground was properly canvassed at the Court below.

On the first ground, the Court below resolved that the Originating Summons was properly filed at the Federal High Court. I shall not say more on this as there is no appeal against the said decision. The only remark I have to make is that the decision is sound since this Court has held severally that pursuant to Section 87 (9) of the Electoral Act, 2010 [as amended], the proper venue for pre-election matters is the Federal High

Court or the High Court of a State or the High Court of the Federal Capital Territory. See Salim v CPC (2013) 6 NWLR (pt 1351) 501, Tarzoor v loraer (2016) 3 NWLR (pt 1500) 463, Nobis-Elendu v INEC (2015) 16 NWLR (pt 1485) 197, etc.

However, on the 2nd leg of the 2nd Respondents Notice, the lower Court held against appellant giving rise to this appeal. A summary of the judgment of the Court below on this issue can be found at page 587 of the record. It states:-

”I have stated earlier on above that, the jurisdiction of the trial Court only became ignitable by the Appellant on the 23rd of April, 2015, the day she obtained the leave of the trial Court to issue and serve her originating summons on the Respondents. The general election itself had been conducted on the 28th of March, 2015. Therefore, it is unarguable that her action was then no longer qualified to be referred to as pre-election matter. Consequently, the trial Court could not be vested with the requisite jurisdiction to adjudicate upon the action of the Appellant under Section 87 (9) of the Electoral Act, after the general election had been conducted and concluded. Accordingly, the

second prong of the 2nd Respondent’s Notice is hereby resolved in favour of the 2nd Respondent and against the appellant.”

Consequent upon the above findings and conclusion, appellant’s originating Summons was held to be incompetent and that the trial Court lacked the jurisdiction to try the case. lt was accordingly struck out.

The simple and only issue to be determined here and now is whether the Originating Summons filed by appellant on 26th March, 2015 was a pre-election matter to which the High Court would assume jurisdiction or a post election matter to which it is only the Election Petition Tribunal that can assume jurisdiction. Appellant has argued that it was a pre election matter haven been filed on 23/3/15 before the election was held on 28/3/15. The respondents and the Court below thought otherwise. In coming to the conclusion that the Originating Summons was incompetent, the lower Court relied on its interpretation of Order 6 Rule 14 of the Federal High Court [Civil Procedure] Rules 2009 and Section 96 and 97 of the Sheriff and Civil Process Act, Cap 56 Vol. 14 LFN 2004. Let me quickly bring the two enactments to the fore, for ease of

reference,

Order 6 Rule 14 of the Federal High Court (CP) Rules states:-

“14 (1) Every application for leave to serve a writ or notice on the 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 the application is made.

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

Also, Sections 96 and 97 of the Sheriffs & Civil Process Act (Supra) provide:-

“96 Writ of Summons may be served in any part of the Federation.

(1) A writ of summons issued out of or 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 of the Capital Territory in which the writ was issued.

97. Endorsement on writ for service outside a State.

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 Capital Territory, have endorsed thereon a notice to the following effect (that is to say) –

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

All parties to this appeal agree that appellant sought and obtained the leave of the trial Court to issue and serve the respondents, who were outside the territorial jurisdiction of the trial Court. The said leave was obtained on 23rd April, 2015. Thus appellant complied with Order 6 Rule 14 of the Federal High Court (Civil Procedure) Rules 2009.

With regards to Section 96 and 97 of the Sheriff & Civil Process Act (supra), the Court below mixed up

the issues of filing of process, issuance and service of process. I agree, without reservation, that service of writ or summons on the defendant is very fundamental to assumption of jurisdiction by a Court and where leave is required before service, it must be sought and obtained before such service can be effective. Leave is nothing other than the permission from the Court to serve outside jurisdiction. Once granted, service can be carried out. Any service outside jurisdiction that is done without leave renders the service a nullity. See Skenconsult Nig. Ltd v Ukey (1981) SC 6, Adegoke Motors Ltd vs. Adesanya (1989) 3 NWLR (pt 109) 250 and Nwabueze v Obi – Okoye (1988) 4 NWLR (pt 91) 664.

The question that may be asked is whether the filing of process in Court and service of the said process are the same. Without much ado, they are not the same. Thus, a party who seeks to place his matter before a Court of law must first approach the Registry of the Court and file same in accordance with the Rules of Court. After filing the matter, the next step is to serve the process on the defendant, except it is a matter which the law permits to be done ex-parte.

Where the law, as in this case, requires that leave be obtained before service can be effected, such leave must be sought and obtained. The Court below seems to have taken the issue of leave to serve outside jurisdiction to mean leave to file the process in Court. This is where the lower Court erred.

If one takes a look at Sections 96 and 97 of the Sheriff & Civil Process Act (supra) it will reveal that they come under a sub title – “Service of Process.” It does not come under filing of process.These are two separate things. One relates to service of process while the other relates to filing of same. The Court below went into error when it accepted the argument of the respondents that an Originating Process at the Federal High Court meant to be served outside jurisdiction can only be said to be filed when leave to serve such process on the defendants is granted and not the actual date it was filed.

Learned counsel for the respondents had relied heavily on the case of owner of M. V. Arabella v Nigerian Agricultural Insurance Corporation (Supra) and the Court below accepted same on the issue. It seems to me that the Court below

misconstrued the real issue in that case. In the said case, the Court set aside the writ of summons which was not properly issued and served outside the jurisdiction of the Court for failure to seek leave of Court. In the instant appeal, appellant sought and obtained the leave of the trial Court before serving the respondents. See also Nwabueze v Okoye (1988) 4 NWLR (pt 91) 664.

Before I leave this issue, I must state that a distinction must be made among these three processes i.e, filing, issuance and service. They come in that order. If nothing is filed, nothing can be issued and served. You cannot apply for leave to serve what is not before the Court. Therefore, the filing of the Originating Summons by the appellant on 26th March, 2015, which was done before the General Elections held on 28th March, 2015, effectively christened the appellant’s suit a pre-election matter. The ex-parte motion for leave to serve the respondents outside the territorial jurisdiction of the Court was, therefore, in compliance with Order 6 Rule 14 of the Rules of the Federal High Court (Supra) and Section 96 and 97 of the Sheriffs and Civil Process Act (supra). The law does

not say that one must obtain leave to file but leave to issue and serve. Having filed the case before election was held, it is my considered view that the Federal High Court had jurisdiction to hear and determine the matter as a pre-election matter.

This Court has stated, in quite a number of decisions that matters which are pursuant to Section 87 (9) of the Electoral Act 2010 (as amended) can be ventilated in the Federal High Court or State High Court or the High Court of the Federal Capital Territory provided they are filed before the holding of the general election. Even if it is filed a day before the election, it will suffice and can still be called pre-election matter. See Nobis-Elendu v INEC (2015) 16 NWLR (pt 1485) 197.

In conclusion, I say that, appellant, haven filed her case on 26th March, 2015 before the Election was held on 28th, March, 2015, her suit before the trial Federal High Court is a pre-election matter and the Court has jurisdiction to entertain same. See also Hassan v Aliyu (2010) 17 NWLR (pt 1223) 599; Salim v CPC (2013) 6 NWLR (pt 1351) 501. The consequence of this is that the Federal High Court or any other High Court the

matter could have been filed before the election, continues to have jurisdiction to hear and determine the suit even after the conduct of the election. See Amaechi v INEC (2008) All FWLR (pt 407) 1, Gwede v INEC (2014) 18 NWLR (pt 1438) 56, Odedo v INEC (2008) 17 NWLR (pt 1117) 554.

All the arguments concerning whether or not the writ was endorsed in line with Section 97 of the Sheriffs and Civil Process Act (Supra) go to no issue as such issue was never decided upon by the Court below nor even the trial Court. There is also no issue in the brief concerning same. Whether the writ was endorsed or not is a question of fact. It cannot be thrown just like that on the appellate Court when it was not taken at the Court of trial. Moreso, since the said writs are still with the respondents and have not been placed before the Court, there is no way the Court can determine whether it was endorsed or not This is so as the 2nd respondent did not file a counter affidavit to the Originating Summons.

In summary, the appeal of appellant is meritorious and is hereby allowed. For the avoidance of doubt, the suit of the appellant before the trial Federal High Court is

competent and constitutes a pre-election suit. The Federal High Court therefore had jurisdiction to try the case. The order of the Court below striking out the suit is hereby reversed. The Originating Summons is hereby reinstalled for hearing on the merit.

Ordinarily, the suit just reinstated ought to be sent back to the Federal High Court, Makurdi, for hearing de novo in view of the fact that the matter was not tried and decided on the merit. However, appellant, as part of the relief sought from this Court in her Notice of Appeal, requested this Court to invoke its powers under Section 22 of the Supreme Court Act to hear and determine the suit on its merits. Section 22 of the Supreme Court Act provides as follows:-

“The Supreme Court may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect of error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Supreme Court thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the Court

below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Supreme Court as a Court of first instance and may rehear the case in whole or in part or may remit it to the Court below for the purpose of such rehearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court.”

The above wide and general powers vested in this Court is to enable us exercise full jurisdiction over the entire proceedings in the same manner in which the trial Judge would, as a Court of first instance. Certain conditions must, however, exist before this Court can exercise the power so conferred. The conditions include the following:-

1. Availability of the necessary materials to consider and adjudicate in the matter.
2. The length of time between the disposal of the action at the trial Court and the hearing of the appeal; and
3. The interest of justice by eliminating further delay that would arise in

the event of remitting the case back to the trial for rehearing and the hardship such an order would cause on either of both parties in the case.

See Inakoju v Adeleke (2007) 4 NWLR [pt 1025] 427 at 691- 692, University of Lagos v Olaniyan (1985) 1 NWLR (pt 1) 156, Jadesimi v Okotie-Eboh (No 2)(1986) 1 NWLR (Pt 16) 264.

In the instant case, there is no doubt that appellant filed her Originating Summons on 26/3/15 as contained on pages 3-117 of the record including the affidavit in support of the originating summons, exhibits attached and a written address in respect of same. Appellant also filed further affidavit in support of her case which can be found at pages 350 to 358 of the record. An exhibit is also attached to it.

Apart from the 3rd defendant who filed her counter affidavit and an address in opposition to the Originating Summons, the record before me shows that the 1st and 2nd defendants did not file any counter affidavit or, written address opposing the Originating Summons of the appellant.

It is now well settled that election petitions or election related matters are sui generis and time is of the essence. It needs to be

emphasized that where the res in a suit before the Court is in danger of being dissipated and wiped out, the Court must take the fast lane and do all it takes to give it a speedy trial. In the instant case, the res is the Vandeikya/Konshisha Federal Constituency seat in the House of Representatives from which two years have already been wiped out, remaining two more years.

Now, who is to blame for the 1st and 2nd respondents’ refusal and/or failure to file counter affidavit against the Originating Summons In pursuing this case, the 1st and 2nd respondents depended on one strategy only. They wanted to end the case on preliminary objection only. This is bad strategy. This Court warned in Inakoju v Adeleke (supra) against such practice. At page 636 paragraph A – G, this Court, per, Tobi, JSC (of blessed memory said:

“It is not advisable in litigation for parties to put all their eggs in one and the same basket particularly in a situation where the procedure to be adopted is not neat, but diverse and versatile such as the procedure in this case. This is because if the basket breaks, as the eggs are broken. This is what the appellants did. All their

concentration was to play on safety in the litigation towards the 29th May, 2007 date so that they can go free with their acts of unconstitutionality or unconstitutionalism. And so they refused to enter appearance.

They also refused to file counter affidavit and they assured themselves that they had so much time to file the processes. They did not accept the genuine offer of the decision in Senate President v Nzeribe (supra) by Mr. Akintola. Unfortunately for them, the whole basket has broken and they find themselves in trouble. They will blame themselves and not this Court.

If I were in their position that is the position of the appellants, I would have entered appearance in protest, filed the counter affidavit also in protest before raising the preliminary objection on jurisdiction. One other way, if they really had the facts to contradict the affidavit in support was to force a dispute on the litigation and if they succeeded in that, the trial judge could not haven got the alternative than to convert the originating summons to a writ of summons and order pleadings. That should have enabled them to achieve what they wanted to achieve.”

The situation in the instant case makes it imperative for this Court to invoke its powers under Section 22 of the Supreme Court Act to hear this case, notwithstanding the fact that the 1st and 2nd respondents did not file their counter affidavit; they behaved as the appellants in Inakoju’s case (supra),

In the opening part of this judgment, I had stated the four questions submitted by the plaintiff in his Originating Summons for determination by the learned trial Judge. I shall not repeat then again. The Originating Summons is supported by a six paragraphed affidavit with six exhibits annexed. The plaintiff’s written address in support of the suit is at page 106 of the record. As I stated earlier, only the 3rd respondent filed counter affidavit of six paragraphs and a two paged written address. Both are at pp.148 – 151 of the record.

I shall start from question three as contained in the Originating Summons since it touches on the qualification of the first defendant to have contested the primary election The complaint of the appellant in this matter is that the 1st respondent was not a member of the 2nd respondent as at 10th

December, 2014 when the disputed primary was conducted. It is the contention of appellant that the 1st respondent was still a member of the Peoples Democratic Party and only defected to the 2nd respondent on 16th December, 2014 after the primaries have been held. Exhibit 5 is the Votes and Proceedings of the House of Representatives of 16th December, 2014 wherein the 1st defendant announced his defection from the PDP to the APC. Another exhibit which supports this contention is exhibit 5A annexed to the affidavit in support. It is a letter written by the PDP Legal Adviser to the appellant confirming that 1st defendant was a member of the PDP up to 16th December, 2014 and that he never resigned from the PDP. Part of the exhibit reads:-

” Peoples Democratic Party

P. D. P,

Benue State Secretariat

30th January, 2015

Hon. Mrs. Dorothy Mata

Member Benue State House of Assembly

Sir,

Re: APPLICATI0N FOR INFORMATION ON THE DEFECTION OF HON. HEMBE FROM THE PEOPLES DEMOCRATIC PARTY (PDP) TO THE ALL PROCRESSIVE PARTY (APC)

The above subject matter refers:

We hereby write in response to your letter dated December, 2014 to

state categorically that Hon. Hembe did no tender and has not tendered any letter of resignation from the PDP to his ward (Mker ward) for the onward transmission to the Konshisha chapter of the party.

Hon. Hembe was a member of the PDP as at the 16th December, 2014 when he announced his defection on the floor of the House of Representatives. His purported defection/denouncement of the party has not been committed to the State Executive Committee or the State caucus of the party.

Be rightly guided.

Yours faithfully

Signed

C. T. Mue Esq

Legal Adviser.”

The 1st and 2nd respondents were served with the Originating Summons with exhibits 5 and 5A attached to the affidavit in support. There is nothing before this Court to counter those weighty allegations against 1st defendant. It is trite that where a party in litigation is served with an affidavit containing some allegations against him or facts which are against his interest and he fails to contradict those facts through a counter affidavit, he is deemed to admit the contents of the plaintiffs affidavit as true. Where, as in this case, there is no counter affidavit to rebut the

facts in a supporting affidavit to an originating Summons, the depositions in the supporting affidavit are deemed admitted. See Ejide v Ogunyemi (1990) 3 NWLR (pt 141) 758, Niger Construction Ltd. v Okugbeni (1987) 4 NWLR (pt 67) 787, Inakoju v Adeleke (supra).

By Article 9 of the All Progressives Congress Constitution which is exhibit 1 in this case, the procedure of being a valid member of the party is stated. It is provided that a member shall be of eighteen years of age and must not be a member of another Political Party.

Again, Article 3 of the 2014 Guidelines for Nomination of candidates for public office of the second defendant annexed to the further affidavit of the plaintiff in support of the originating Summons provides as follows:,

“The Party’s Constitution prescribes that members name in the register of members and evidence of membership shall be the prima facie evidence of valid registration as a member. Hence the first requirement is that any aspirant on the platform of the Party shall have complied with this provision.

Has the 1st defendant complied with this provision I do not think so. The plaintiff challenged the

status of the 1st defendant as a member of the 2nd defendant. Neither the 1st defendant nor the 2nd defendant made any effort to show to the trial Court that he is a member of the 2nd defendant. Rather, they both chased shadows for the past two years on issue of jurisdiction hoping that the matter will last in Court till the 1st defendant completes the four years term in the House of Representatives.

Having regard to paragraphs 4(g) and (h) of the affidavit in support exhibit 1, 1A, 5, and 5A annexed to the said affidavit and there being no counter affidavit to contradict the facts deposed therein, I am satisfied and hold that plaintiff has proved that the 1st defendant was not a member of the APC as at 10th December when the Primary Election was held. Accordingly, he was not qualified to contest the said primary election as he was still a member of the PDP.

In view of the above position and the fact that only the plaintiff/appellant and Hon. Herman Hembe were the candidates who contested the primaries for the Vandeikyn/Konshisha Federal Constituency Seat in the House of Representatives, I enter judgment for the plaintiff/appellant. To further show

that the plaintiff has a good case, let me say a few words on the other questions for determination joining them together. In doing so, I shall consider two reports, the first by the National Assembly Primary Elections Appeal Committee of the 2nd defendant dated 16th December, 2014 and the other by the INEC, the 3rd defendant in this case. At pages 101 – 103 of the record, the report of the 2nd defendants Primary Election Appeals Committee report is stated. It states:

‘The National Chairman

All Progressives Congress (APC)

Blantyre Street

Wuse II, Abuja

Sir,

REPORT OF NATIONAL ASSEMBLY PRIMARIES APPEAL COMMITTEE

VANDEIKYA/KANSHISHA (JESHIRA) FEDERAL CONSTITUENCY PRIMARIES ON THE 10TH DEECEMBER, 2014.

The above subject matter refers:

Introduction: Two contestants stood for the election.

1. Hon. Dorathy Mato
2. Hon. Herman Hembe

(i) The election did not hold on the 7th December, 2014 and venue (Vandeikya LGA) being the Head Quarter of the constituency has (sic) was fixed and announced.

(ii) The following day 8th December, 2014, the election was moved to Katsina Ala LGA, outside the Federal

Constituency and still did not hold.

(iii) The election was eventually moved to Makurdi the State Head Quarter on the 10th December, 2014 and held amidst irregularities.

(iv) No result was announced, the returning officer left unceremoniously.

APPEAL/PETITIONS:

Hon. Mrs. Dorothy Mato appeal that:

(i) The delegates were insisting on the right that Vandeikya LGA must have their turn for the Federal house in the person of Hon. Dorathy Mato.

(ii) This is the reason the election were dragged and moved from one area and date to another, looking for a convenient place to rig the election in favour of Hon. Herman Hembe.

(iii) The chief security to Hon. Mrs. Dorathy Mato was shot on the head. This dispersed the insistent delegates and the electoral officer left to an unknown destination.

(iv) The election was inconclusive.

Investigation:

(i) Several attempts to have Hon. Herman Hember defend himself were abortive as he did not appear before the committee.

(ii) Vandeeikya LGA and Konshisha LGA share a Federal Constituency.

(iii) Elective offices in the Federal Constituency are rotational.

(iv) vandeikya had

done 2 terms of 8 years in the Federal House of Representatives and handed over to Konshisha LGA.

(v) Konshisha LGA has equally done 2 terms of 8 years and are to hand over to Vandeikya LGA.

(vi) Hon. Herman Hember is a sitting 2 terms Federal House Member from Konshisha LGA.

(vii) Hon. Herman Hember wants to go 3rd term.

(viii) The traditional zoning does not favour Hon. Herman Hembe for 3rd term.

(ix) Hon. Herman Hembes Local Government has been given the Senate Ucket in the person of Senator Gemade.

(x) Hon. Mrs Dorathy Mato is from Vandeikya LGA where the zoning favoured.

Recommendations:

(i) It would be unpopular to have Hon. Herman Hembe as a candidate for Vandeeikya/Konshisha Federal Constituency.

(ii) Senate and Federal House should not come from one Local Government.

(iii) Hon. Mrs. Dorathy Mato is the rightful candidate for Vandeikya/Konshisha Federal House of Representatives.

(iv) You may please declare Mrs. Dorathy Mato as a candidate.

Signed

Apostle Godwin Ukpanukpong

Chairman

Signed

Suraj Fadairo

Secretary

Signed

Umar Ali Galdam

Member.

Let me also refer to exhibit 2, the report of the Monitoring Committee of INEC, the 3rd defendant in this case. The report is dated 11th December, 2014 and can be found at pages 63 – 67 of the record. Part of the report states:-

(a) The rescheduled date and venue of the primary was not communicated to the commission on time.

(b) There was omission of two names of delegates each from Ninger Tsambe and Township Council Wards of Vundeikya Local Government area.

(c) The delegates from Mbukyaha Council Ward of Vandeikya Local Government Area did not vote on the account of unavailability of the list of delegates from the ward.

(d) One of the contestants in the election, Mrs Dorathy Mato tendered a written complaints against the conduct of the election. (See attached copy).

(e) The desired secrecy in balloting by the voter is made unattainable as a result of indiscriminate assistance sought by illiterate delegates from the agents in ceasing their votes.

The facts deposed to in paragraphs 3 and 4 of the affidavit in support of the Originating Summons, show that the said primary election was held at HAF

HAVEN HOTEL, MAKURDI quite outside the headquarters of the Federal Constituency. So, apart from the irregularities catalogued in exhibits 4 and 2 reproduced above, the holding of the primary was contrary to the Electoral Act 2010 (as amended) and the Constitution of the 2nd defendant.

Section 87(4) of the Electoral Act, 2010 (as amended)

“A Political Party that adopts the system of indirect primaries for the choice of its candidate shall adopt the procedure outlined below-

(c) in the case of nomination to the position of Senatorial candidate, House of Representatives and House of Assembly, a political party shall, where they intend to sponsor candidates-

(1) hold special congresses in the Senatorial District, Federal Constituency and State Assembly respectively, with delegates voting for each of the aspirants in designated centres in specified dates.

As a corollary to the above provision, article 14.11 of the 2nd defendant’s Constitution provides that every member shall assemble at their respective Federal Constituency Headquarters and voting shall be by secrete ballot. A combined reading of these two provisions reveals that

it is mandatory for the political parties to hold their congresses for the purpose of selecting their candidates in the headquarters of the Constituency. As was pointed out by learned counsel for appellant in their written address, the Electoral Act and the 2nd respondent’s Constitution make detailed provisions for the way and manner by which primary elections are to be conducted. This is to ensure a level playing field for all aspirants. Any contravention of the Act and Constitution of the Party in this regard would be regarded as a play to regard the principle of due process of law enshrined therein.

It is trite that where a statute provides for a means of doing a thing, no other means or manner shall be permitted. Both the Electoral Act and the Constitution of the 2nd defendant make it mandatory that primaries be conducted in the headquarters of the Constituency. The failure to comply with these provisions makes the entire exercise null and void. See Nwabueze v Okoye (1988) 4 NWLR (pt 91) 664, Ezeobi v Nzeka (1989) 1 NWLR (pt 98) 478.

The truth must be told and that is, that the 1st and 2nd defendants did not respect the provisions of the

Electoral Act and the Constitution of the 2nd defendant in the conduct of the primaries. This Court has decided in quite a number of cases that political parties must obey their own constitutions as the Court will not allow them to act arbitrarily or as they like. See Uzodinma v Izunaso (No2) (2011) 17 NWLR (pt 1275) 30 at 60, Ugwu v Ararume (2007) 12 NWLR (pt 1048) 326 at 914 paras. D – E; CPC v Lado (2011) 14 NWLR [pt 1266) 40 at 91 – 92 paras, D G.

From all I have endeavoured to say above, it is crystal clear that the primaries which produced the 1st defendant was frought with manifold irregularities aside the fact that he was not even qualified to contest same. Thus, since only the plaintiff and the 1st defendant were the contestants, the 2nd defendant ought to have given effect to the recommendation of its Primary Election Appeal Panel which recommended that appellant’s name be submitted to the 3rd Respondent – INEC. There is nothing on record to contradict the principle of rotation as contained in the said report. The principle of justice, equity and fair play demanded that since Konshisha Local Government Area had taken the office of

Senate through Senator Gemade, the other Local Government Area is Vandeikya, where the plaintiff belongs ought to produce a member of the House of Representatives. I do not know how politicians think but for me, it was unfair to give both the Senate and House of Representatives seats to Konshisha Local Government while Vandeikya had nothing to show for it. I need not say more on this.

On the whole, I hold that all the four questions submitted by the plaintiff in the Originating Summons are answered in her favour. It follows that in the eye of the law, the plaintiff was the sole candidate of the 2nd defendant as per the report of the Appeals Committee. Judgment for the plaintiff. I shall therefore make the following consequential orders:

1. I hereby declare that the plaintiff/appellant was the winner of the Primary election of the All progressives Congress [APC] with respect to Vandeikya/Konshisha Federal Constituency of Benue State held from 7th-10th December, 2014;
2. That the plaintiff/appellant was the winner of the General Election of 28th March, 2015 with respect to Vandeikya/Konshisha Federal Constituency of Benue State as candidate of the

APC.

3. I hereby order the Independent National Electoral Commission (INEC) to withdraw the certificate of return issued to Hon. Herman Hembe immediately, and issue same to the plaintiff/appellant forthwith.
4. I also order and direct the Speaker of the House of Representatives or the Clerk of the House (whichever is applicable) to swear-in the plaintiff/appellant Hon. Mrs. Dorathy Maro as the member representing Vandeika/Konshisha Federal Constituency Benue State at the National Assembly forthwith.
5. 1st respondent is hereby ordered to refund all the salaries/allowances and or emoluments he collected while occupying the seat in the House of Representatives within ninety (90) days of this order to the House of Representatives.
6. Costs of this action is assessed at N200,000 in favour of the plaintiff/appellant against the 1st defendant only at the lower Courts and N500,000 in this Court.

Appeal allowed. Judgment for the plaintiff/appellant

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SC.733/2016