Oladimeji Lateef Ajijola V. Hon. Fatima Rasaki & Ors (2019)
LAWGLOBAL HUB Lead Judgment Report
WALTER SAMUEL NKANU ONNOGHEN, C.J.N.
These appeals are against the judgment of the Court of Appeal, Ado Ekiti Division, delivered on the 6th day of December, 2017 between the common appellant and the respondents.
The brief facts of the case is that on 7th day of December, 2014 the 2nd respondent, Peoples’ Democratic Party, conducted primary election for Ekiti Central Senatorial District. The contestants in the election were the 1st respondent, the appellant and two others.
It is the case of appellant that at the conclusion of the election, he was publicly announced as the winner of the election haven polled 108 votes as against the 1st respondent’s 80 votes: that the 3rd respondent (INEC) monitored the said election and confirmed the above result. However, it was the name of the 1st respondent that was forwarded to the 3rd respondent. He contended that 3rd respondent who, despite having kept records of who polled the highest number of votes at the primary election, accepted and listed the name of the 1st respondent on the 13th January, 2015 as the candidate of the 2nd respondent,
1
(PDP) for the Ekiti Central Senatorial District general election. Consequently, appellant instituted suit No. FHC/1087/2014: Oladimeji Ajijola vs. PDP & 2 ORS challenging the nomination of the 1st respondent. Upon the preliminary objection filed by the 1st respondent, the trial Court declined jurisdiction and struck out the said suit on the ground that there was no principal relief against the 3rd respondent (INEC).
Appellant thereafter instituted another action suit NO.FHC/AD/CS/16/2015 on the 26th March, 2015 against the respondents.
The 2nd respondent filed a counter affidavit together with a written address while the 1st respondent once again raised a preliminary objection challenging the trial Court’s jurisdiction to hear the suit on the grounds that appellant’s claim was statute barred by virtue of Section 2(a) of the Public Officers Protection Act and that the earlier determined suit No. FHC/AB/CS/1087/2014 constitutes a bar for the appellant to re-litigate the matter (that is he raised the plea of res-judicata)
After due consideration of all the processes filed, the learned trial judge declined jurisdiction and transferred the suit to the High Court of Ekiti State.
2
Being dissatisfied with the judgment of the trial Court, the 1st and 2nd respondents filed appeal at the Court of Appeal vide notice of appeal dated 10th August, 2016, consisting of four grounds of appeal, while appellant filed a cross appeal.
On the 6th day of December, 2017, the Court below allowed the appeal of appellants, and set aside the judgment of the trial Court delivered on 6th August, 2015 and the consequential order of transfer of the suit to the High Court of Ekiti State.
Being dissatisfied with the judgment of the Court of Appeal delivered on 6/12/2017, appellant filed a Notice of Appeal on 1/3/2018.
Appellant brief of argument was deemed filed and served on the 31st day of October, 2018 while his reply brief was filed on 29/10/2018 but also deemed filed and served on 31/10/2018.
1st and 2nd respondents’ brief of argument was deemed filed and served also on the 31/10/2018, as well as the 3rd respondent’s brief.
Two issues were formulated and argued in the appellant brief. They are: –
“ISSUE NO. 1
Whether time was suspended for the purpose of
3
calculating the limitation period during the pendency of suit No. FHC/CS/ABJ/1087/14 (between 23/12/14 and 25/3/15) to therefore bring the suit filed at the trial Court on 26/3/15 within 3 months from when the cause of action was held to have accrued (on 7/12/14) and therefore within the statutory period within which an action could be commenced against INEC (Ground 1 of the Notice and Ground of Appeal.)
ISSUE NO. 2
Whether this is not an appropriate circumstance for the Supreme Court to invoke the provision of Section 22 of the Supreme Court Act in view of the failure of the Court of Appeal to invoke the powers conferred on it by Section 15 of the Court of Appeal Act. (Ground 206 and of the Notice & Ground of Appeal).”
On the other hand, the 1st and 2nd respondents set out 2 issues for argument by simply adopting the issues of the appellant.
As a follow-up, the 3rd respondent, set out one (1) issue for argument as follows: –
“Were the noble Justices of the Court of Appeal wrong in dismissing the action of the appellant”
The 3rd -respondent’s lone issue is similar to the appellants. I therefore adopt appellant’s issues and shall so treat the appeal thereupon.
4
ISSUE NO.1
“Whether time was suspended for the purpose of calculating the limitation period during pendency of suit No. FHC/CS/ABJ/1087/14 (between 23/12/14 and 25/3/15) to therefore bring the suit filed at the trial Court on 26/3/15 within 3 months from when the cause of action was held to have accrued (on 7/12/14) and therefore within the statutory period within which an action could be commenced against INEC (Ground 1)”
Upon raising this issue, the learned counsel for appellant, M.J. Onigbanjo, SAN urged the Court to come to the conclusion that the matter filed by appellant on 20th March, 2015 by virtue of the argument and authorities cited by him, was not statute barred and to reverse the contrary finding of the Court of Appeal in this regard.
Learned counsel contended that the Court of Appeal in its judgment held that the cause of action arose on 7th December, 2014 when it held as follows:
“…I have situated the two dates: 7th December,2014, when the cassus bell arose, and the 26th March, 2015 when the suit was instituted. By calendar computation, between 7th December; 2014 and 26th March. 2015 a
5
period of about three months and nineteen days.”
that it was based on the above finding that the Court of Appeal came to the conclusion that the action filed by appellant at the trial Court on 26th March, 2015 was statute barred, relying on a host of authorities. The Learned senior counsel contended that even though he extensively drew the attention of the Court below to decided cases such as Sifax Nig Ltd vs. Migfo Nig Ltd (2015) LPELR 24655 (CA) and Alh. Haruna (Trading as cash stores) vs. Hermann Ebert (1966- 69) NNLR.75 in which the Courts held that in situations such as the one at hand, the action even though mathematically filed outside the imitation period are not adjudge statute barred, the Court of Appeal completely ignored these decisions, contrary to the doctrine of stare decisis.
The learned silk further submitted that appellant’s was not statute barred because the cause of action arose on the 7th December, 2014 and that their first suit was filed on the 23rd December, 2014, though that suit was struck out on the 25th March, 2015, he subsequently filed another suit on the 26th March, 2015, a day after; that going by the decision in the
6
Sifax case, time is frozen during the pendency of the first case which was struck out on 25th March, 2015. However, learned counsel to 1 & 2 respondents submitted that contrary to the argument of appellant’s counsel, when the initial suit of the appellant filed on the 23rd December, 2014 was struck out on 25th March, 2015, appellant, on the 26th March, 2015, filed a fresh case in the same Federal High Court.
The 1st & 2nd respondents’ counsel further submitted that appellant did not RELIST the struck out case of 25th March, 2015 but rather filed a fresh case. The 1st & 2nd respondents’ counsel referred this Court to a plethora of decided cases in support of his argument and finally urged the Court to resolve this issue against appellant and in favour of the 1st and 2nd respondents.
As stated earlier in this judgment the 3rd respondent’s counsel raised a sole issue to wit:
“Were the noble Justices of the Court of Appeal wrong in dismissing the action of the appellant”
and submitted that the case of Sifax relied so much upon by counsel for appellant in support of his case is quite distinguishable from the facts in this case. Finally, counsel
7
urged the Court to uphold the judgment of the Court below and dismiss the appeal.
I have carefully examined the issues formulated by each counsel for the determination of this appeal. I therefore proceed to consider issues No. 1.
I am of the opinion that this issue, if well considered will put the appeals to rest. Now, the pertinent question is: what is the consequence of a case that is struck out by a Court This question was answered by this Court in the case of Panalpina World Transport Nigeria Ltd vs. J.B. Oladeen International & Ors (2010)19 NWLR (pt.1226) 1 @ 20 per ADEKEYE, JSC thus:
‘when a matter is struck out, it is still alive and kept in the Court’s general cause list and that – “when an order is made in respect of an application not heard on the merit, it amounts to striking out simplicter. Even where an Order of dismissal is made following a hearing which is not based on the merit, such Order is still considered in law a mere striking out. When a matter is struck out in the circumstances, there is liberty to relist. The simple explanation is that while the matter is disconnected from that date, it is still alive and kept
8
in the Court’s general cause list and can be brought back to the hearing cause list… In such a case; the Plaintiff still has another opportunity to reopen the action after rectifying the deficiency that resulted in the striking out of the action. This is applicable even where the Court has not included in the Order of striking out that the Plaintiff has an option to relist. The matter struck out has not left the cause list – as it is still a pending case or pending cause. The same procedure applies even when a matter has been decided many years ago. Alor vs. Ngene (2007) ALL FWLR (pt. .362) pp1836; (2007) 17 NWLR (pt.1062)163: Waterline Nigeria Limited vs. Fawe Services Limited (2003)FWLR (pt.163) p.88″. See also the Supreme Court case of Abey vs. Alex (1999)14 NWLR (pt. 637)148 at 162 in my modest view, it follows that the revival of the action after it had been struck out, so the stoppage of time during the pendency of the action that was struck out would count in favour of the renewed action at the Court with requisite jurisdiciton of the Court below. The Writ was taken out on 18-07-12 vide page 1 of the record of appeal (the record). While the action had been
9
initiated in 2006, in the same year the cause of action crystalised ran its full cause of litigation from the Federal High Court to the Court of Appeal and finally at the Supreme Court where it was struck out on appeal for want of jurisdiction of the Federal High Court on 08-06-12 as reported (2013) 3 NWLR (pt. 1333) 555 vide page 13 of the Appellant’s Brief of Argument where the law report was referred to. Between 18-7-12 when the action was filed at the Court below and 08-09-12 when the action was struck out at the Supreme Court is less than two months showing the Respondent did not tarry or delay in filing the action at the Court below after they discovered from the Judgment of the Supreme Court that only the State High Court has the jurisdiction to entertain the action.” (Underlining and italics supplied for Emphasis).
From the above highlights, it is clear that a suit struck out remains pending in the general cause list such that same can be reopened for further proceedings to be taken therein when and only when, such suit is relisted by the Plaintiff.
The next question that needs an answer is: Is Suit No. FHC/AD/CS/16/2015 a Relisted suit
10
The suit under consideration was filed on the 26th day of March, 2015, immediately suit No. FHC/15/ABJ/1087/14 filed on 23/12/14 was struck out.
It is the contention of the appellant’s counsel that suit No. FHC/AD/CS116/2015 filed on 26/03/2015 and which culminated in the present appeal is not statute barred by virtue of Section 2 (a) of Public Officers (Protection) Act regard being had to the cause of action which accrued on 07/12/2014; he submitted that the 3 months limitation period enacted by that Act was suspended and/or frozen when he filed the earlier suit on 23/12/14 and when the said suit was struck out by the trial Court on 25/03/2015.
It is settled law that a case struck out is still pending and same can be reopened for further proceedings to be taken therein when and only when such suit is relisted by the Plaintiff and not when, as in the suit leading to the instance appeal, the Plaintiff goes back, prepares a completely new suit and files same afresh in the same Court. Appellant never relisted the suit that was struck out on 25th day of March, 2015 but filed a fresh case in the suit No. FHC/AD/C5/1612015 on the 26th March, 2015.
11
I am of the view that suit No. FHC/C5/ABJ/1087/14 filed on 23/12/2014 and struck out on the 25/3/2015 from the cause list by the trial Court is still pending in Court.
Furthermore, this Court in Sifax Nig. Ltd. V. Migfo (Nig.) Ltd. (supra) held that “a suit struck out is still alive and kept in the Court’s general cause list and can be brought back to the hearing cause list and the Plaintiff still has another opportunity to reopen the action only after rectifying the deficiency that resulted in the striking out of the action.
The trial Court having found that Federal High Court is the wrong Court to institute appellant’s action as constituted, rather than rectifying the deficiency that led to the striking out of the suit by re-filing same in the Court with the requisite Jurisdiction to entertain his claims; which is Ekiti State High Court; appellant merely rearranged his reliefs which remain the same as in the earlier suit and, without curing the defects in the said earlier suit, filed the latter suit No. FHC/1201CS/16/2015 in the same wrong Court Federal High Court on 26/03/2015.
I have earlier observed that appellant’s case in the suit No.
12
FHC/CS/ABJ/1087/14 filed on 23/12/2014 but struck out on 25/03/2015 is still pending in the trial Court’s cause list, in which case appellant still has an option of either to relist the case or appeal against the decision of the trial Court.
Premised on the foregoing, I affirm the decision of the Court below that the suit of the appellant was statute barred. Accordingly, issue No.1 is answered in the negative and in favour of the respondents.
ISSUE NO. 2
“Whether this is not an appropriate circumstance for the Supreme Court to invoke the provisions of Section 22 of the Supreme Court Act in view of the failure of the Court of Appeal to invoke the powers conferred on it by Section 15 of the Court of Appeal Act
In view of my opinion in issue No. 1 above, I will not bother myself with issue No. 2 as formulated by the learned counsel for appellant; it is clear that this appeal is an exercise in futility and is consequently doomed to fail as appellant did not appeal against the finding in suit No. FHC/CS/ABJ/1087/14 neither did he relist same, as that case is still pending in the Federal High Court’s cause list.
13
In the case of Iyoho V. Effiong (2007) 11 NWLR (Pt. 1044) 31 at 54 -.55 paragraphs H – D this Court per Onnoghen J.S.C., as he then was, stated thus:
“…However, it was improper for the respondent in hand to commence certiorari proceedings in suit No. C/MSC/68/98 in the face of the pending application in the Rent Control Court. I hold the view that suit No. C/MSC/68/98 was an abuse of the process of the Court However, going through the grounds of appeal at pages 238 -242 of the record, there is no ground attacking the decision of the lower Court on the issue of abuse of Court process neither has any issue been formulated before this Court relating thereto. It is settled law that a decision of the Court not appealed against is deemed accepted by the party against whom the decision was entered and therefore binding. I hold the view that granted, without conceding, the appellant’s issue for consideration in this appeal succeeds, the legal effect of that decision would not be sufficient to set aside the decision of the lower Court, in view of the fact that that Court had held in addition that the suit giving rise to the appeal before it was instituted is abuse of process and that decision
14
remained subsisting and binding.
Therefore, without even bothering oneself with the issue formulated by learned Counsel for the appellant, it is clear that this appeal is an exercise in futility and is consequently doomed to fail.
In conclusion, I am of the considered view that this appeal fails. Accordingly, the Judgment of the Court below delivered on 6th, December, 2017 in appeal No. CA/EK/51/2015 is hereby affirmed. I make no order as to costs.
SC. 272/2016
This is a sister appeal to SC.271/2018 just decided supra as they arose from the same judgment on same facts between the same parties. The arguments of counsel are the same. The only noticeable difference lies in the arrangement of the parties particularly the respondents.
In the circumstance, this appeal No. SC. 272/2018 has been overtaken by the decision just rendered and is consequently dismissed for lack of merit.
The judgment of the lower Court in appeal No. CA/EK/51/2015 delivered on 6th December, 2017 is hereby affirmed. I also make no order as to costs.
Appeal dismissed.
SC.271/2018(CONSOLIDATED)
