PDP v. INEC & ORS

CITATION: (2018) LPELR-44373(SC)

In the Supreme Court of Nigeria

ON FRIDAY, 13TH APRIL, 2018Suit No: SC.766/2017

Before Their Lordships:

OLABODE RHODES-VIVOUR Justice of the Supreme CourtMARY UKAEGO PETER-ODILI Justice of the Supreme CourtAMIRU SANUSI Justice of the Supreme CourtAMINA ADAMU AUGIE Justice of the Supreme CourtSIDI DAUDA BAGE Justice of the Supreme Court

BetweenPEOPLES DEMOCRATIC PARTY - Appellant(s)

And1. INDEPENDENT NATIONAL ELECTORALCOMMISSION (INEC)2. REUBEN IZEZE3. MR. FESTUS UTUAMA

- Respondent(s)

RATIO DECIDENDI1. CASE LAW - JUDICIAL PRECEDENT/STARE DECISIS: Whether a case is solely an authority for what

it decides"I must remind counsel that a case is authority for what it decides. Relying on a case without relating itto the facts that induced it will amount to citing the case out of the proper context. The whole purposeof citing, a case is for the law on it to be known."Per RHODES-VIVOUR, J.S.C. (P. 19, Paras. A-B) - read incontext

(201

8) LP

ELR-44

373(

SC)

2. COURT - DUTY OF COURT: Duty of an appellate Court to consider and make pronouncements on allissues formulated by parties"Curiously, the angle taken by the trial Court that the action was statute barred was not deliberatedupon by the Court below before it reached the conclusion sending the matter back to the High Court fortrial on the merit. The guides in this regard are captured in the cases hereunder referred to thus:A. G. Anambra State v A. G. Federation (2005) NWLR (Pt. 931) 572 where this Court stated:"An Order or a judgment of Court no matter the fundamental vice that afflicts it remains legally bindingand valid until set aside by due process of law." per Katsina-Alu JSC (as he then was).See also Federal College of Education, Pankshin v. Pusmut (2007) LPELR - 8170 (CA) where the Courtstated:"In the present appeal, the issue of the action being statute barred is fundamental and critical to thedetermination of that case because once it is established that the action being statute barred it wouldhave brought the matter to an end without more."See Wilson v Oshin (2000) 9 NWLR (Pt. 673) 442 at 462 para H. 463.For a fact the Court below cannot remit the matter back to the Federal High Court for trial on the meritwhen the decision of that Court declining jurisdiction had not been addressed on appeal. This isbecause the earlier trial decision remained valid and subsisting and cannot be ignored or overreachedand what the Court of Appeal did cannot be sustained. See Mcfoy v UAC (1961) 3 ALL ER 1169.I cannot but agree with the appellant that the Court of Appeal not being the final Court is duty bound toconsider and pronounce on all the issues that were properly canvassed before it and failure to do soamounts to a miscarriage of justice. See Brawal Shipping (Nig) Ltd v. F.I. Onwadike (2000) 11 NWLR (Pt.678) 387; Emavworhe Etajata & Ors v. Peer Igbini Ologbo & Anor. (2007) ALL FWLR (Pt 386) 584 at 607- 611.The exception to the general rule about the Court of Appeal being an intermediate Court can let goother issues is when those issues can be subsumed into the one considered and pronounced upon. Inthis case at hand, the question that arises is if an issue of an action being statute barred can be easilysubsumed into the issue of failure to seek and obtain leave for service outside jurisdiction. The answeris definitely a resounding NO as the two issues are independent and distinct having a life of its own.Therefore not tackling the other issues raised translated to a breach of the right to fair hearing of theappellant. See Uzuda & Ors v Ebigah (2009) 8 - 9 NMLR 409 at 422 per Muntaka-Coomassie JSC; SambaPetroleum Ltd & Anor v UBA Plc & Ors. (2010) 6 NWLR page 530 at 531.It follows that when the Court of Appeal failed to consider and make a pronouncement on the crossAppeal, a major or fundamental breach occurred. Firstly a cross-appeal is an action on its own whichcannot be subsumed into the main appeal and so difficult to comprehend when the Court below heldthat there was no need to consider the cross-appeal of the 2nd and 3rd respondents in thecircumstance of the appeal before that Court. It needs be said that a cross appeal is an appeal in itsown right and cannot be subordinated under the main appeal. It is akin to a counter claim which existsseparately and distinctly from the main claim and must be given its due and so does not maintain itsexistence or survival on the substantive appeal depending for sustenance on what happens to the mainappeal. I place reliance on Olodo & Ors v Iburuku & Ors {2011) LPELR - 3644 (CA); Oroja v Adeniyi(2017) ALL FWLR (Pt. 883) 1432.From the foregoing it is clear that the decision of the Court of Appeal has to be disturbed as amiscarriage of justice took place and this Court has to set things right."Per PETER-ODILI, J.S.C. (Pp.34-37, Paras. A-B) - read in context

3. PRACTICE AND PROCEDURE - CONDITIONAL APPEARANCE: Meaning and nature of conditionalappearance"A conditional appearance is an appearance under protest and usually means an appearance to objectto the Court's jurisdiction."Per RHODES-VIVOUR, J.S.C. (P. 6, Paras. C-D) - read in context

4. PRACTICE AND PROCEDURE - HEARING NOTICE: Fundamental nature of the service of hearingnotice on parties in the adjudication process and effect of failure to serve same where required"When a case is called and the defendant is absent, it is the duty of the Court to find out if thedefendant was served. If he was not served the case is adjourned to another date for service to beproperly effected on the defendant.This is premised on the long settled position of the law that failure to give notice of proceedings to anopposing party in a case where service of process is required is a fundamental omission (except whereproceedings are exparte) which renders the proceedings void because the Court would have nojurisdiction to entertain such a suit. See Haruna v. Ladeinde (1987) 4 NWLR (Pt. 67) p. 941, Obimonurev Erinosho (1966) 1 ANLR p. 250."Per RHODES-VIVOUR, J.S.C. (P. 13, Paras. B-E) - read in context

(201

8) LP

ELR-44

373(

SC)

5. PRACTICE AND PROCEDURE - ISSUANCE/SERVICE OF ORIGINATING PROCESS(ES): Optionsavailable to a defendant who was served with a writ of summons in breach of Sections 97 and 99 of theSheriffs and Civil Process Act"When an originating process is served on the defendant and he has an objection to it, he is expectedto 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 theground of originating process and service being invalid.If the defendant does not follow the above procedure he cannot question the originating process orservice on appeal."Per RHODES-VIVOUR, J.S.C. (Pp. 13-14, Paras. E-A) - read in context

6. PRACTICE AND PROCEDURE - ISSUANCE/SERVICE OF ORIGINATING PROCESS(ES): Effect offailure to obtain leave and properly endorse a writ of summons to be served outside jurisdiction of theCourt"I shall consider whether there was compliance with Section 97 of the Sheriff and Civil Process Act. Ifthere 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:"Every writ of summons for service under this part out of the State or the Capital Territory which it wasissued shall in addition to any other endorsement or notice required by the law of such State or theCapital 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 inthe .... State (as the case may be)."Where the words used in a statute are clear and unambiguous they must be given their ordinarymeaning. 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 inmandatory terms. It is abundantly clear that any service of a writ without the proper endorsement asstipulated by Section 97 supra, is not a mere irregularity but is a fundamental defect that renders thewrit 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 any endorsement of notice required have endorsed on it, a notice indicating, that thesummons is to be served out of the State and in which State it is to be settled. Once again failure toendorse the required notice on an originating process for service outside a State where it was issued isnot a mere irregularity but a fundamental defect that renders the originating process incompetent. ACourt would be deprived of jurisdiction to hear the case if satisfied that there is non-compliance withSection 97 of the Sheriffs and Civil Process Act. See Odu'a 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.1The Courts have no discretion under Section 97 of the Sheriffs and Civil Process Act. Once the claimantfails to comply with the mandatory provision in Section 97 supra the Court would no longer havejurisdiction to hear the suit. It is fundamental that the claimant obeys and complies fully with theprovision. No valid appearance can be entered by the defendant to an originating process that does nothave the mandatoryendorsement, except to enter conditional appearance.I have examined the originating summons and the subsequent amendment to it and I am satisfied thatthere is no endorsement on it for service in Abuja outside Delta State. The originating summons isinvalid, 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 thisappeal 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 wouldhave no jurisdiction to hear the case."Per RHODES-VIVOUR, J.S.C. (Pp. 15-18, Paras. E-C) - read incontext

(201

8) LP

ELR-44

373(

SC)

7. PRACTICE AND PROCEDURE - ISSUANCE/SERVICE OF ORIGINATING PROCESS(ES): Effect offailure to obtain leave of Court before endorsement of a writ for service out of jurisdiction"The relevant provisions of the Sheriffs and Civil Process Act Section 97 precisely and Order 6 Rule 12(1) of the Federal High Court (Civil Procedure) Rules are hereunder recast as follows:"Every writ of summons for service under this part out of the State or the capital Territory which it wasissued shall in addition to any other endorsement or notice required by the law of such State or theCapital 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 the .....the State (or as the case may be)."While Order 6 Rule 12(1) of the Federal High Court (civil Procedure) Rules 2000 states:"No writ or notice which is to be served out of the jurisdiction shall be issued without the leave ofCourt."The import of leave where so required and is not sought and obtained is that the writ, originatingsummons or any originating process whereby the leave is a condition process to the validity of theoriginating process. The situation is well explained by this Court in the case of: NEPA v Onah (1997)LPELR - (1959) (SC); or (1997) 1 NWLR (Pt. 494) 690, where the Supreme Court stated:"Where the rules of the High Court provides that before a writ of summons to be served out of thejurisdiction, is issued, leave of the High Court must be obtained and if no such leave is obtained prior totaking out of the writ then, the writ is vitiated and would be declared null and void. The decision isbinding on all Courts by the doctrine of stare decisis." per Uwais CJN (as he then was) (P.18 paras E -G.)That decision was followed recently in a similar case of SPDC v Onyiriuka (2016) LPELR - 41309 (CA),where the Court of Appeal stated thus:"The respondents deluded themselves into false belief that because the Federal High Court'sJurisdiction encompasses the whole Federation of Nigeria, it did not need the leave of the Federal HighCourt of Owerri, to be first sought and obtained before a writ of summons could issue and to obtainpermission to serve the defendant/appellant in Port Harcourt. They even have the temerity to contendthat failure to obtain leave either for the writ to issue or permission to serve in Port-Harcourt, a placeoutside the jurisdiction of the Federal High Court, Owerri is a mere irregularity. This argument ismisplaced and has no support in law. See once again the holding of this Court per Okoro JCA (now JSC)in the case of Touton SA v G.C.D.Z. SPA & Ors (supra) para 22 D - H to 23 A- C where in it was held:By Order 6 Rule 12 (1) of the Federal High Court (Civil Procedure) Rules 2000:"No writ or notice of which is to be served out of the jurisdiction shall be issued without the leave ofCourt."The Court explained further:"Generally a plaintiff desirous of issuing a writ for service outside the jurisdiction of the Court files anex parte application seeking for leave to issue the said writ and attaches an unsigned copy of the writto the affidavit in support of the application. Thereafter the plaintiff can issue same subsequent toobtaining the required leave to do so. Anything short of this renders the writ incompetent ab initio, forany writ of summons meant for service outside the jurisdiction of the Court which is issued before orwithout leave is null and void. See Adegoke Motors Ltd v Adesanya (1989) 3 NWLR (pt. 109) 250. Seealso Agip (Nig.) v Agip Petrol Int'l (2010) 5 NWLR (Pt. 1187) 548; Owners of M. V. Arabella v NAIC (2008)11 NWLR (Pt. 1097) 182 and Abacha v Fawehinmi (2006) 6 MWLR (Pt.600) 228. The process in thisinstance is thus: "1. For service on 1st defendant INEC Office, Abuja2. For Service on 2nd defendant .. Peoples Democratic party National secretariat Wadata plaza, plot1970 Michael Okpara street Wuse Zone 5, Abuja.On the face of the record, it is clear that the process is intended for Delta State while the service is tobe made in Abuja which is out of the Delta State territory and so the requirement for the leave to servethe process outside Delta State cannot be bypassed. The matter is fundamental that the absence ofthe leave of the trial Court before signing or sealing of the writ for service out of the jurisdiction ofDelta State is a breach which extinguished the life out of the writ. In this, I find support in the case ofDrexel Energy and National Resources ltd & Ors v Trans International Bank Ltd & Ors (2008) 18 NWLR(pt.1119) 388 at 437 per Ogbuagu JSC.The presentation on ground shows that there were motions challenging the competence of the suitlong before the 2nd and 3rd defendants filed their counter affidavit to the originating summons. Therewas a Memorandum of conditional Appearance and so the right was not lost in the challenge to theCourt's jurisdiction and this timeously.See Auto Import Export v Adebayo (2005) 19 NWLR Pt.959) 44; Haightons (WA) Ltd v Ajao (1975) 1 SC(Reprint) 8; Sani v. Okene L.G Traditional Council (2005) 12 NWLR (Pt.1102) 691."Per PETER-ODILI,J.S.C. (Pp. 24-29, Paras. F-A) - read in context

(201

8) LP

ELR-44

373(

SC)

OLABODE RHODES-VIVOUR, J.S.C. (Delivering the

Leading Judgment): 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,

1

(201

8) LP

ELR-44

373(

SC)

t h e 3 r d r e s p o n d e n t a s p l a i n t i f f f i l e d a n

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

(201

8) LP

ELR-44

373(

SC)

2

(201

8) LP

ELR-44

373(

SC)

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 defendant’s

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

3

(201

8) LP

ELR-44

373(

SC)

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

4

(201

8) LP

ELR-44

373(

SC)

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

5

(201

8) LP

ELR-44

373(

SC)

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

(201

8) LP

ELR-44

373(

SC)

6

(201

8) LP

ELR-44

373(

SC)

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

7

(201

8) LP

ELR-44

373(

SC)

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

8

(201

8) LP

ELR-44

373(

SC)

the appellant’s 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

9

(201

8) LP

ELR-44

373(

SC)

(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

10

(201

8) LP

ELR-44

373(

SC)

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

appellant’s 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 respondent’s 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

(201

8) LP

ELR-44

373(

SC)

11

(201

8) LP

ELR-44

373(

SC)

properly issued in accordance with Section 97 of the

Sheriffs and Civil Process Act. The trial Court declined

jurisdiction to hear the 3rd respondent’s/plaintiff’s 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.

12

(201

8) LP

ELR-44

373(

SC)

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

13

(201

8) LP

ELR-44

373(

SC)

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

14

(201

8) LP

ELR-44

373(

SC)

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:

15

(201

8) LP

ELR-44

373(

SC)

“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

16

(201

8) LP

ELR-44

373(

SC)

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 Odu’a 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

17

(201

8) LP

ELR-44

373(

SC)

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

18

(201

8) LP

ELR-44

373(

SC)

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 context. 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.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the

judgment just delivered by my learned brother, Olabode

Rhodes-Vivour JSC and in support of the reasoning from

which the decision came, I shall make some

19

(201

8) LP

ELR-44

373(

SC)

remarks.

This appeal is against the judgment of the Court of Appeal

Benin Division or Court below or lower Court delivered on

the 12th day of June, 2017 coram: Ekpe, Adumein and,

Oniyangi JJCA which set aside the decision of the trial

Court which had struck out the suit for want of competence

and being statute barred.

The facts leading to this appeal are well set out in the lead

judgment and so no need to repeat them except for when

the occasion warrants a reference to any part thereof.

On the 17th day of January 2018 date of hearing, learned

counsel for the appellant, E. T. Omonemu Esq. adopted its

brief filed on 29/9/17 and in which were raised four issues

for determination, viz:

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

(Ground 1).

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. (Ground 2)

20

(201

8) LP

ELR-44

373(

SC)

3. Whether the Court of Appeal has not breached 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 (Ground 2)

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 (Ground 3)

Alhassan A. Umar Esq. learned counsel for the 1st

respondent informed the Court, he did not file any brief of

argument.

Same was with Ikhide Ehigelua Esq. learned counsel for the

2nd respondent.

For the 3rd respondent, Ama Etuwewe Esq of counsel

adopted his brief of argument filed on 12/10/2017 and he

went along the issues as crafted by the appellant.

Those issues are good enough for me in the consideration

of this appeal and I shall use them.

ISSUE NO 1

This questions 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.

Learned counsel for the appellant

(201

8) LP

ELR-44

373(

SC)

21

(201

8) LP

ELR-44

373(

SC)

contended that leave was mandatorily required before

service of the writ could be validly served out of jurisdiction

in keeping with Section 97 of the Sheriffs and Civil Process

Act and Order 6 Rule 12(1), of the Federal High Court

(Civil Procedure) Rules. That the absence of that leave

means the jurisdiction of the trial Court was not properly

invoked. He cited NEPA v Onah (1997) LPELR - (1959)

(SC); or (1997) 1 NWLR (Pt. 494) 680; SPDC v

Onyiriuka (2016) LPELR - 41309 CA; Drexel Energy

and National Resources Ltd & Ors v Trans

International Bank Ltd & Ors (2008) 18 NWLR (Pt.

1119) 388 at 437.

That the defendants had raised the issue timeously and

having argued it, they cannot be taken to have waived their

right. He cited Auto Import Export v Adebayo (2005) 19

NWLR (pt. 959) 44; Haightons (WA) Ltd v Ajao (1975)

1 SC (Reprint) 8; Sani v. Okene L.G. Traditional

Council (2008) 12 NWLR (Pt.1102) 691.

In response, Ama Etuwewe Esq. of counsel for 3rd

respondent submitted that it is wrong to assume and or

hold that obtaining leave to issue a writ or an originating

summons as in this case is a condition precedent and a

mandatory

22

(201

8) LP

ELR-44

373(

SC)

requirement of the law to the validity of the process. He

referred to the same Order 6 Rule 13(1) and 14(1) of the

Federal High Court (Civil Procedure) Rules 2008 and

Section 97 of the Sherriff’s and Civil Processes Act;

Owners of the MV Arabella v. Nigeria Agriculture

Insurance Corporation (2008) 11 NWLR (Pt.

1097) 182 at 206: Enterprises Bank Ltd v Aroso

(2014) 3 NWLR (Pt. 1394) 256 at 294.

That the 3rd respondent having fulfilled all that was

necessary on his part and the bailiff of the Court, having

filed an affidavit of service stating the necessary details and

the fact of the said mandatory endorsement, the trial Court

ought to have acted on same particularly there being no

counter-affidavit from the respondents to controvert the

facts deposed therein by the bailiff of the Court. He cited

Ahmed v Ahmed (2013) 15 NWLR (Pt.1377) 274 at

249 - 350.

The trial Court's judgment was to the effect that the suit

was incompetent and proceeded to strike it out on the

ground that the originating summons was not properly

issued for service outside the jurisdiction of the Court. Also

that the action was statute barred for breach of Section

2(a) of the Public Officers Protection Act.

23

(201

8) LP

ELR-44

373(

SC)

On the appeal of the 3rd respondent who was plaintiff at

the trial Court, the Court of Appeal set aside that order of

the trial Court holding thus:

"I accordingly set aside the order of the lower Court

striking out the suit of the appellant in suit

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 Or. 6 Rule 16 - 17 of the Federal

High Court Civil Procedure Rule and S. 97 of the

Sheriff and Civil Process Act.

Having gone this far and considering the fact that the

suit of the appellant was sent packing on the

preliminary objection without considering the

substantive suit, I do not consider it proper to go

further with the consideration of other issues.

On that note also I feel there is no need to consider

the cross appeal of the 2nd and 3rd respondents in

the circumstances of the fact of this appeal."

The relevant provisions of the Sheriffs and Civil Process Act

Section 97 precisely and Order 6 Rule 12 (1) of the Federal

High Court (Civil Procedure) Rules are hereunder recast as

follows:

24

(201

8) LP

ELR-44

373(

SC)

"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 (that is to say)...

This summons (or as the case may be) is to be served

out of the .....the State (or as the case may be)."

While Order 6 Rule 12(1) of the Federal High Court (civil

Procedure) Rules 2000 states:

"No writ or notice which is to be served out of the

jurisdiction shall be issued without the leave of

Court."

The import of leave where so required and is not sought

and obtained is that the writ, originating summons or any

originating process whereby the leave is a condition

process to the validity of the originating process. The

situation is well explained by this Court in the case of:

NEPA v Onah (1997) LPELR - (1959) (SC); or (1997) 1

NWLR (Pt. 494) 690, where the Supreme Court stated:

"Where the rules of the High Court provides that

before a writ of summons to be served out of the

jurisdiction, is issued, leave of the High Court

25

(201

8) LP

ELR-44

373(

SC)

must be obtained and if no such leave is obtained

prior to taking out of the writ then, the writ is vitiated

and would be declared null and void. The decision is

binding on all Courts by the doctrine of stare decisis."

per Uwais CJN (as he then was) (P.18 paras E - G.)

That decision was followed recently in a similar case of

SPDC v Onyiriuka (2016) LPELR - 41309 (CA), where

the Court of Appeal stated thus:

"The respondents deluded themselves into false belief

that because the Federal High Court's Jurisdiction

encompasses the whole Federation of Nigeria, it did

not need the leave of the Federal High Court of

Owerri, to be first sought and obtained before a writ

of summons could issue and to obtain permission to

serve the defendant/appellant in Port Harcourt. They

even have the temerity to contend that failure to

obtain leave either for the writ to issue or permission

to serve in Port-Harcourt, a place outside the

jurisdiction of the Federal High Court, Owerri is a

mere irregularity. This argument is misplaced and

has no support in law. See once again the holding of

this Court per Okoro JCA (now JSC) in the case of

Touton SA v G.C.D.Z. SPA

26

(201

8) LP

ELR-44

373(

SC)

& Ors (supra) para 22 D - H to 23 A- C where in it was

held:

By Order 6 Rule 12 (1) of the Federal High Court

(Civil Procedure) Rules 2000:

"No writ or notice of which is to be served out of the

jurisdiction shall be issued without the leave of

Court."

The Court explained further: "Generally a plaintiff

desirous of issuing a writ for service outside the

jurisdiction of the Court files an ex parte application

seeking for leave to issue the said writ and attaches

an unsigned copy of the writ to the affidavit in

support of the application. Thereafter the plaintiff

can issue same subsequent to obtaining the required

leave to do so. Anything short of this renders the writ

incompetent ab initio, for any writ of summons meant

for service outside the jurisdiction of the Court which

is issued before or without leave is null and void.

See Adegoke Motors Ltd v Adesanya (1989) 3 NWLR

(pt. 109) 250. See also Agip (Nig.) v Agip Petrol

Int’l (2010) 5 NWLR (Pt. 1187) 548; Owners of M. V.

Arabella v NAIC (2008) 11 NWLR (Pt. 1097) 182

and Abacha v Fawehinmi (2006) 6 MWLR (Pt.600)

228. The process in this instance is thus: "1. For

service

27

(201

8) LP

ELR-44

373(

SC)

on 1st defendant INEC Office, Abuja

2. For Service on 2nd defendant .. Peoples Democratic

party National secretariat Wadata plaza, plot 1970

Michael Okpara street Wuse Zone 5, Abuja.

On the face of the record, it is clear that the process is

intended for Delta State while the service is to be made in

Abuja which is out of the Delta State territory and so the

requirement for the leave to serve the process outside

Delta State cannot be bypassed. The matter is fundamental

that the absence of the leave of the trial Court before

signing or sealing of the writ for service out of the

jurisdiction of Delta State is a breach which extinguished

the life out of the writ. In this, I find support in the case of

Drexel Energy and National Resources ltd & Ors v

Trans International Bank Ltd & Ors (2008) 18 NWLR

(pt.1119) 388 at 437 per Ogbuagu JSC.

The presentation on ground shows that there were motions

challenging the competence of the suit long before the 2nd

and 3rd defendants filed their counter affidavit to the

originating summons. There was a Memorandum of

conditional Appearance and so the right was not lost in the

challenge to the

28

(201

8) LP

ELR-44

373(

SC)

Court’s jurisdiction and this timeously.

SeeAuto Import Export v Adebayo (2005) 19 NWLR

Pt.959) 44;

Haightons (WA) Ltd v Ajao (1975) 1 SC (Reprint) 8;

Sani v. Okene L.G Traditional Council (2008) 12

NWLR (Pt.1102) 691.

There is no gainsaying that this issue has to be resolved in

favour of the appellant as the Court below erred in setting

aside what the trial Court did.

ISSUES 2, 3 & 4

ISSUE 2:

Whether the Court of Appeal was right in holding that

the trial Court has 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.

ISSUE 3:

Whether the Court of Appeal has not breached 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.

ISSUE 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.

(201

8) LP

ELR-44

373(

SC)

Learned counsel for the appellant

29

(201

8) LP

ELR-44

373(

SC)

submitted that the trial Court was correct when it held that

the action filed by the plaintiff now respondent violated the

clear provisions of the Public Officers Protection Act. That

since that decision was not reversed, quashed or set aside

by the Court of Appeal, the decision remains valid and

subsisting. He cited A.G Anambra State v. A.G.

Federation (2005) NWLR (Pt. 931) 572; Federal

College of Education, Pankshin v Pusmut (2007)

LPELR – 8170 (CA); Wilson v Oshin (2000) 9 NWLR

(Pt. 673) 442 at 462 – 463.

That the lower Court having not set aside the trial Court's

decision that the action was statute barred erred in law in

remitting the matter back to the Federal High Court for

trial on the merit when the Federal High Court by its

finding, which is validly so, is bereft of jurisdiction as it

amounted to putting something upon nothing. He cited

Mcfoy v UAC (1961) 3 ALL ER 1169.

Learned counsel for the appellant contended that the Court

below was duty bound to consider and pronounce on all

issues properly canvassed before it and failure to do so

occasioned a miscarriage of justice. He referred to Brawal

Shipping (Nig) Ltd v F. I.

30

(201

8) LP

ELR-44

373(

SC)

Onwadike (2000) 11 NWLR (Pt. 678) 387; Anambra

State Government & Anor v. Anambra State House of

Assembly & Ors (2012) LPELR - 9463 (CA) etc.

That the only exception to the rule to have considered all

issues is that the issues are subsumed into the one

considered and pronounced upon. He cited Uzuda & Ors v

Ebigah (2009) 8 - 9 NMLR 409 at 422; Samba

Petroleum Ltd & Anor v UBA Plc & Ors. (2010) 6

NWLR page 530 at 531 etc.

Learned counsel for the appellant pointed at the fact that

the Court below did not consider the cross appeal of the

now appellant who was 2nd respondent/cross- appellant in

the Court of Appeal. That issues raised in a cross appeal

could not have been subsumed in the main appeal as a

cross-appeal is a separate action which must be considered

and determined on its own. He cited; Olodo & Ors. v

Iburuku & Ors (2011) LPELR - 3644 (CA); Akpan v

Bob & Ors (Unprinted SC 135/2009) delivered on 21st

May, 2010; Oroja v Adeniyi (2017) ALL FWLR (pt. 883)

1433.

That the judgment of the Court below should be set aside.

Responding, learned counsel for the respondent submitted

that the Court below fully dealt with whether or not the

action of the

(201

8) LP

ELR-44

373(

SC)

31

(201

8) LP

ELR-44

373(

SC)

3rd respondent was statute barred and so the issue was

subsumed in the case of the 2nd respondent in the Court

below. He cited Husseini v Mohammed (2015) 3 NWLR

(Pt. 1445) 100 at 125; Kayili v Yilbuk (2015) 7 NWLR,

(Pt.1457) 26 at 77.

That the Supreme Court should pursuant to its powers

under Section 22 of the Supreme Court Act and Order 8

Rule 12 (2) of the Supreme Court Rules, pronounce on the

said issues and deal with them in this appeal.

Stating further, learned counsel for the respondent

submitted that the 3rd respondent’s action at the trial

Court is not statute barred by reason of Section 2(a) of the

Public Officers Protection Act as the cause of action

accrued on the 27th January, 2015 when the 1st

respondent INEC published the names of the candidates

omitting and substituting the 3rd respondent’s name

instead as the candidate of the appellant. He cited Hassan

v Aliyu (2010) 17 NWLR (pt. 1223) 547 at 621; Nobis -

Elendu v INEC (2015) 16 NWLR (Pt. 1485) 197 at 228.

At the Court of first instance the following decision was

reached, viz:

“To my mind, the narrow issue for determination here

is did this cause of action arise

32

(201

8) LP

ELR-44

373(

SC)

on the 26/12/2014 or 27/1/2015 as contended by

counsel. From the circumstances of this case, the

plaintiff cannot use exhibit FU14, as shield to claim

that his cause of action arose on 27/1/2015. As a

member of the 2nd defendant, the plaintiff cannot

claim ignorance of the fact that the name of the 3rd

defendant was not received by the 1st defendant on

26/12/2014. It is my conclusion that the cause of the

action in this case arose or cropped up on the

26/12/2014 and not on 27/1/2015 as counsel to the

plaintiff would want the Court to believe. Time

started running from the 26/12/2014. From the

26/12/2014 to the 9/4/2015 when the plaintiff filed his

originating summons is three (3) months, 15 days.

From this arithmetical calculation the plaintiff is

outside the statutory period of 3 months he had to file

his case. He filed this action about 15 days after the

expiration of the statutory of the period of 3 months

stipulation in Section 2 (a) of the Public Officers

Protection Act.

......the point I am struggling to make is that the case

of the plaintiff is statute barred and liable to be

struck out because he instituted the cause of action

outside the period

33

(201

8) LP

ELR-44

373(

SC)

allowed by limitation of law.......

In sum, this case is statute barred and is liable to be

struck out and I so hold…

Curiously, the angle taken by the trial Court that the action

was statute barred was not deliberated upon by the Court

below before it reached the conclusion sending the matter

back to the High Court for trial on the merit. The guides in

this regard are captured in the cases hereunder referred to

thus:

A. G. Anambra State v A. G. Federation (2005) NWLR

(Pt. 931) 572 where this Court stated:

“An Order or a judgment of Court no matter the

fundamental vice that afflicts it remains legally

binding and valid until set aside by due process of

law.” per Katsina-Alu JSC (as he then was).

See also Federal College of Education, Pankshin v.

Pusmut (2007) LPELR - 8170 (CA) where the Court

stated:

"In the present appeal, the issue of the action being

statute barred is fundamental and critical to the

determination of that case because once it is

established that the action being statute barred it

would have brought the matter to an end without

more.”

See Wilson v Oshin (2000) 9 NWLR (Pt. 673) 442 at

462

34

(201

8) LP

ELR-44

373(

SC)

para H. 463.

For a fact the Court below cannot remit the matter back to

the Federal High Court for trial on the merit when the

decision of that Court declining jurisdiction had not been

addressed on appeal. This is because the earlier trial

decision remained valid and subsisting and cannot be

ignored or overreached and what the Court of Appeal did

cannot be sustained. See Mcfoy v UAC (1961) 3 ALL ER

1169.

I cannot but agree with the appellant that the Court of

Appeal not being the final Court is duty bound to consider

and pronounce on all the issues that were properly

canvassed before it and failure to do so amounts to a

miscarriage of justice. See Brawal Shipping (Nig) Ltd v.

F.I. Onwadike (2000) 11 NWLR (Pt. 678) 387;

Emavworhe Etajata & Ors v. Peer Igbini Ologbo &

Anor. (2007) ALL FWLR (Pt 386) 584 at 607 - 611.

The exception to the general rule about the Court of Appeal

being an intermediate Court can let go other issues is when

those issues can be subsumed into the one considered and

pronounced upon. In this case at hand, the question that

arises is if an issue of an action being statute barred can be

easily subsumed into the issue

35

(201

8) LP

ELR-44

373(

SC)

of failure to seek and obtain leave for service outside

jurisdiction. The answer is definitely a resounding NO as

the two issues are independent and distinct having a life of

its own. Therefore not tackling the other issues raised

translated to a breach of the right to fair hearing of the

appellant. See Uzuda & Ors v Ebigah (2009) 1 - 9

NMLR 409 at 422 per Muntaka-Coomassie JSC;

Samba Petroleum Ltd & Anor v UBA Plc & Ors. (2010)

6 NWLR page 530 at 531.

It follows that when the Court of Appeal failed to consider

and make a pronouncement on the cross Appeal, a major or

fundamental breach occurred. Firstly a cross-appeal is an

action on its own which cannot be subsumed into the main

appeal and so difficult to comprehend when the Court

below held that there was no need to consider the cross-

appeal of the 2nd and 3rd respondents in the circumstance

of the appeal before that Court. It needs be said that a

cross appeal is an appeal in its own right and cannot be

subordinated under the main appeal. It is akin to a counter

claim which exists separately and distinctly from the main

claim and must be given its due and so does not maintain

its existence

36

(201

8) LP

ELR-44

373(

SC)

or survival on the substantive appeal depending for

sustenance on what happens to the main appeal. I place

reliance on Olodo & Ors v Iburuku & Ors {2011)

LPELR - 3644 (CA); Oroja v Adeniyi (2017) ALL FWLR

(Pt. 883) 1432.

From the foregoing it is clear that the decision of the Court

of Appeal has to be disturbed as a miscarriage of justice

took place and this Court has to set things right.

I also go along with my learned brother in the lead

judgment and al low the appeal . I abide by the

consequential orders made.

AMIRU SANUSI, J.S.C.: I have had the advantage of

reading in advance the judgment prepared by my learned

brother Rhodes-Vivour, JSC just delivered. On perusing

same, I find myself in entire agreement with this reasoning

and conclusion that the lower Court's decision has to be set

aside.

I too accordingly do same and restore the judgment of the

trial Court. I have nothing more to add.

AMINA ADAMU AUGIE, J.S.C.: I read in draft the lead

judgment delivered by my learned brother, Rhodes-Vivour,

JSC, and I agree with his reasoning and conclusion that the

Court has no

37

(201

8) LP

ELR-44

373(

SC)

j u r i s d i c t i o n t o h e a r t h e c l a i m s o f t h e 3 r d

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. Appeal is allowed.

SIDI DAUDA BAGE, J.S.C.: I have had the benefit of

reading in draft the lead Judgment of my learned brother

Olabode Rhodes-Vivour, JSC, just delivered. I agree entirely

with the reasoning and conclusion reached. I do not have

anything useful to add. I find merit in this appeal, it is

hereby allowed by me. I abide by all the orders contained in

the lead Judgment.

38

(201

8) LP

ELR-44

373(

SC)

Appearances:

E.T. Omonemu with him, M.G. Duku. ForAppellant(s)

Alhassan A. Umar for 1st Respondent, E.Ehighelua with him, O.J. Obodaya for 2ndRespondent and A.V. Etuwewe with him, M.K.Emuvakpor for 3rd Respondent.For Respondent(s)

(201

8) LP

ELR-44

373(

SC)