MR. REUBEN IZEZE V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ORS. (2018)

Background

This appeal arose from a dispute concerning the Peoples Democratic Party’s primary election for the Ughelli South Constituency seat in the Delta State House of Assembly in 2015. Mr. Reuben Izeze and Mr. Festus Utuama contested the primary. Utuama claimed that he won the primary election and was issued a certificate of result, but that his name was subsequently substituted with Izeze’s name and forwarded to the Independent National Electoral Commission as the PDP candidate.

Utuama commenced proceedings at the Federal High Court, Warri Judicial Division, by originating summons. He sought declarations that he was the lawful PDP candidate, orders nullifying Izeze’s election and certificate of return, reinstatement of his candidacy, payment of benefits allegedly received by Izeze, and substantial damages. INEC, the PDP and Izeze entered conditional appearances, thereby appearing under protest and challenging the jurisdiction of the court. They argued, among other things, that the action was improperly commenced by originating summons, was statute-barred, involved contentious facts, and had not complied with the statutory requirements for service outside jurisdiction.

The trial court upheld the objections and struck out the suit. It held that the originating summons was invalid because it lacked the endorsement required by section 97 of the Sheriffs and Civil Process Act. It also held that the action was statute-barred, having been commenced more than three months after the cause of action arose. The Court of Appeal reversed the trial court’s decision and remitted the case for hearing on the merits. Izeze appealed to the Supreme Court, while Utuama filed a cross-appeal.

Issues

1. Whether the originating summons issued in Delta State for service on INEC and the PDP in Abuja complied with sections 97, 98 and 99 of the Sheriffs and Civil Process Act.
2. Whether the Court of Appeal could remit the case for trial without first setting aside the trial court’s subsisting finding that the action was statute-barred.
3. Whether the Court of Appeal’s failure to determine the cross-appeal violated the appellant’s right to fair hearing.
4. Whether the Supreme Court could invoke section 22 of the Supreme Court Act to determine the substantive dispute despite the defective originating process.

Ratio Decidendi

The Supreme Court allowed the appeal and restored the decision of the trial court. The Court held that section 97 of the Sheriffs and Civil Process Act is mandatory. Where an originating process issued in one State or the Federal Capital Territory is intended to be served outside that jurisdiction, it must contain the prescribed endorsement stating that it is to be served outside the issuing jurisdiction and in the specified State or territory.

The originating summons and amended originating summons issued from the Federal High Court, Warri, were to be served on INEC and the PDP at addresses in Abuja. Neither process contained the mandatory statutory endorsement. The later application for leave to issue and serve the process, made after issuance and service, could not cure the defect because leave must be obtained before service. The defect was therefore fundamental: the process was void, not merely irregular or voidable, and service of it amounted in law to no service.

The Court further held that the Federal High Court Civil Procedure Rules could not override or displace the Sheriffs and Civil Process Act, which is an Act of the National Assembly and therefore superior to subsidiary procedural rules. The Court distinguished Enterprise Bank Ltd v. Aroso, explaining that the case did not determine the effect of section 97 and could not properly be relied upon as authority on that issue. A case is authority only for what it actually decided and must be applied in the factual context that produced the relevant pronouncement.

Court Findings

The Court held that filing a conditional appearance generally signifies an appearance under protest for the purpose of challenging jurisdiction. It also reiterated that where an originating process is void for a fundamental defect, the court lacks jurisdiction to adjudicate on the claim. Section 22 of the Supreme Court Act could not properly be invoked to determine the merits of a case commenced by a void process. The appropriate order was to strike out the action, leaving the claimant at liberty to commence a fresh action if otherwise entitled to do so.

On the cross-appeal, the Court observed that the Court of Appeal had failed to rule on the cross-appeal, although a cross-appeal is distinct from the main appeal and is comparable in importance to a counterclaim. That failure constituted a breach of the right to fair hearing. In addition, the Court of Appeal should not have ordered a retrial while the trial court’s finding that the suit was statute-barred remained subsisting and had not been set aside. A judgment or order remains binding until set aside by due process, even where it is alleged to contain a fundamental error.

Conclusion

The Supreme Court concluded that the amended originating summons was invalid, worthless and void because it was not endorsed in accordance with section 97 of the Sheriffs and Civil Process Act. The Court of Appeal’s judgment was set aside, the trial court’s decision was restored, the appeal was allowed, and the cross-appeal was struck out. The Supreme Court declined to determine the underlying dispute over the PDP candidacy because there was no valid originating process upon which jurisdiction could be founded.

Significance

The decision emphasises the strict and jurisdictional character of statutory requirements governing service of originating processes outside the issuing jurisdiction. It also clarifies the hierarchy between an Act of the National Assembly and procedural rules made under delegated authority. The case is significant for electoral litigation and civil procedure because it demonstrates that urgency or the public importance of an election dispute cannot excuse non-compliance with mandatory jurisdictional requirements. It further confirms that appellate courts must determine all properly presented appeals and cross-appeals and cannot order a retrial on the merits while an undisturbed decision remains that the action is statute-barred.