IN THE HIGH COURT OF JUSTICE

EDO STATE OF NIGERIA

IN THE EKPOMA JUDICIAL DIVISION
HOLDEN AT EKPOMA

BEFORE HIS LORDSHIP HON. JUSTICE J. O. OKEAYA – INNEH ON

THURSDAY THE 28th DAY OF MAY, 2020

BETWEEN: SUIT NO. HEK/ 9 /2020

1. ERUAGA GALLANT C. CLAIMANTS/ APPLICANTS
2. JIDE OBALOWOSHE ESQ.
AND
1. PEOPLES DEMOCRATIC PARTY (PDP)……..1ST DEFENDANT/RESPONDENT
2.INDEPENDENT NATIONAL ELECTORAL … 2ND DEFENDANT/RESPONDENT
COMMISSION (INEC)
RULING

This ruling is based on a motion on notice filed on the 17th day of March,
2020 on behalf of the claimants/applicants who I shall henceforth refer to
as the applicants for ease of reference. The motion is praying this
Honourable Court for the following;
1. An Order of this Honourable Court setting aside the purported local
government and state congresses organized and conducted by the
defendants/respondents on the 7th and 14th of March, 2020
respectively.
2. And for such further order or orders(s) as this Honourable Court may
deem fit to make in the circumstances of this case.

The grounds for the application are as follows;

1. This suit was instituted by the claimants/applicants on the 5th day of
February 2020 seeking in the main an order of perpetual injunction
restraining the defendants/respondents from recognizing or utilizing
the purported Ward Congress of the 1st defendant held on the 1st day
of February, 2020.
2. The defendants/respondents were also served with a motion on
notice seeking the purported result of the ward congress and for an

1
 order restraining the 1st defendant/ respondent from conducting the
LGA Congress pending the hearing and determination of the
substantive suit.
3. The defendants/respondents were duly served with the said motion
on notice and the 1st defendant/respondent indeed, filed a counter
affidavit and written address in opposition to the said motion for
interlocutory injunction.
4. In order to foist a situation of helplessness and to render any
decision that the Court may give nugatory, the 1st
defendant/respondent proceeded to publish a time table for the
conduct of the said congresses during the pendency of the suit and
motion for interlocutory injunction.
5. The 1st defendant/respondent proceeded to conduct the LGA and
State Congresses in total disrespect and contempt of court and in
order to prejudice the subject matter of this case and the pending
motion for interlocutory injunction.
6. That this Honourable Court has the powers to set aside the said
congresses and reverse the parties to the status ante bellum.

The motion is supported by an affidavit of 17 paragraphs, 5 exhibits and

a written address wherein learned counsel to the applicant formulated
one issue for determination which is;

“whether the defendants/respondents

action of conducting LGA and State
Congresses despite the pending and
determination of the suit, pending and
determination of the interlocutory
application and court directive for
parties to maintain status quo, is not
liable to be set aside.”

Arguing the issue, learned counsel stated that once parties bring their case
before the Court, the parties are precluded from resorting to self help and
must allow the law and procedure run its full course. That once a party
takes any step that prejudices the substantive case or the pending
application before the Court, the Court has the power and in fact the duty

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to set aside such steps and reverse parties to the status quo ante bellum
without reference to the merits or demerits of the substantive case.

Arguing further, he stated that the applicants who instituted this suit
against the respondents also filed an application for interlocutory injunction
restraining the respondents from conducting LGA Congress pending the
determination of the substantive case. That the respondents joined issue
with the applicants on the said motion for interlocutory injunction by filing
counter affidavit and written address. Despite being aware of the pendency
of this suit and the interlocutory application, the 1st defendant proceeded
to publish a time table for the conduct of the LGA and State Congresses.

He continued stating that the respondent being aware of the pendency of

the suit and most importantly the said interlocutory injunction still
proceeded to conduct the said purported LGA and State Congresses. He
referred Court to the case of A. G. ENUGU STATE .V. MARCEL & ORS
(2019) LPELR – 48184 (CA) wherein the Court held thus;

“...however, exhibits E and E1

clearly established the fact that
suit no. N/38M/2006 was pending
at the time they conducted the
election. The conduct of the
election while suit no. N/38M/2006
was pending is contemptuous and
a gross disrespect for the Court and
rule of law. The defendants filed a
counter affidavit in that suit on
13/7/2006 and 6/12/2006. They
were fully aware of the pendency
of the suit and the motion for
interlocutory injunction seeking to
restrain them from conducting the
election. Yet, they proceeded to
conduct the election. The law is
sacrosanct that once parties have
submitted their dispute to the
Court for adjudication, they must

3
 allow the law and the judicial
process to run its course. None of
them is allowed to embark on any
action which may affect the subject
matter of the dispute or the
outcome of the case. See GOV. OF
LAGOS STATE .V. OJUKWU (1986) 1
NWLR (PT. 18) 621. GARBA .V. F. S.
C. C. & ANOR (1988) LPELR 1304
(SC) 28 – 29 (C – E).”

He contended that the acts of the defendants/respondents are

contemptuous and a gross disrespect for the Court and the rule of law. He
also referred Court to the case of A. G. ENUGU STATE .V. MARCEL &
ORS (SUPRA) where the Court held thus;

“Where a party takes an action during

the pendency of a suit which affects
adversely the subject matter of the suit
or steals a match on his opponent, the
Court will invoke its disciplinary power
to reverse the action and return the
parties to the status quo.”

He submitted that the said Congresses held by the defendants/respondents

during the pendency of this suit and the pendency of the interlocutory
motion ought to be set aside. He urged this Court to grant this application
in the interest of justice.

On the 19th day of May, 2020, learned SAN, counsel to the 1st defendant/
respondent whom I shall henceforth refer to as the respondent for ease of
reference filed a counter affidavit of 24 paragraphs, 1 exhibit and a written
address vide an application for extension of time granted by this Court.

From the written address, learned counsel formulated 2 issues for

determination which are;
1. Whether this Honourable Court has the competence and jurisdiction
to entertain the claimants/applicants application without first

4
 resolving the challenge to its jurisdiction by the 1st defendant and if
so, whether the application is not a veiled attempt at arresting the
delivery of the ruling of this Honourable Court on the challenge to
jurisdiction, which is not permissible under the law.?
2. Whether the claimants/applicants have made out a proper case and
established their entitlement to the reliefs sought on the face of the
motion paper as required by law, and in all the circumstances of this
case.
Arguing issue one, learned counsel to the respondents reiterated the well
settled position of the law that jurisdiction is the life wire of adjudication
and where the jurisdiction of a court is challenged, it must be resolved first
and the court is not entitled to conduct any other proceedings or make any
other order than to resolve the issue of jurisdiction. He referred Court to
the case of NDIC .V. C.B.N (2002) 7 NWLR (PT 766) PG 272 AT 292
PARA H where the Supreme Court held thus,

“the Court must not give an order in the

suit affecting the defendants until the
issue of jurisdiction is settled when it has
been raised.”

Arguing further, he stated that in making the above submissions, they are
not unmindful of the decision of the Supreme Court in EBHODAGHE VS.
OKOYE (2004) LPELR-987(SC) where it was held that issues of
contempt of court can be inquired into at the discretion of the court in
priority over a challenge to the jurisdiction of the court but that the said
decision is clearly inapplicable to the facts and circumstances of this case
for the following reasons:

i. The principle established in EBHODAGHE VS. OKOYE

(SUPRA) is only applicable where the contempt or other
wrongful act complained of occurred in facie curie such as can
be dealt with summarily but not for complaints alleged to have
happened ex-facie curie and requiring consideration of evidence
for their resolution, as in the instant case. See DANGOTE VS.
A.P PLC&ORS (2012) LPELR-7974(CA) PAGES 35 – 37
PARAGRAPHS F-A where the Court of Appeal per DANJUMA,
J.C.A clarified the position of the law and held as follows:

5
 “The epicenter of this case on appeal is
as to whether a contempt proceedings
should be proceeded with in spite of the
Appellant's challenge to the jurisdiction
of the Court or Tribunal to proceed with
the main suit from whence the
complaint relating to contempt arose.
This is the basis of and fulcrum of this
appeal. Ordinarily, the power to punish
for contempt is an inherent power in all
Superior Courts of record and Tribunals.
It is for the preservation of its dignity
and for the preservation of the sanctity
of the law. In this wise, the power
inures and is exercisable where the
contempt is committed in-facie curie i.e.
before the Court, whether the Court has
jurisdiction to try the substantive case
i.e. has jurisdiction in the matter or not.

However, where the contempt is

committed ex-facie curie, i.e. outside
the face of the Court, it cannot be tried
brevimanu; thus, this constitutes an
exception where the Court would need
to first determine and decide on
whether it has jurisdiction or not. This
would have to be done first before it
assumes jurisdiction to try for contempt.
Aside contempt in facie curie the law is
that once jurisdiction is raised in
challenge, the Court has a duty to
determine that issue first before
proceeding."

ii. There is no question of priority of applications in this case and

therefore no question of exercise of discretion because the

6
 motion challenging jurisdiction has already been taken and
heard by this Court at a time when there was no pending
application for contempt before this Court. Having heard the
application challenging its jurisdiction, this Honourable Court is
duty bound under the law to deliver its ruling on that
application first before proceedings to consider any other issue
or issues. He referred Court to the case of SHA'ABAN &
ANOR. V. SAMBO & ORS. (2009) LPELR-4949(CA).

iii. In any case, even if there were two pending applications, the
hearing of the application challenging jurisdiction first will be
judicious exercise of discretion. See CHUKWUOGOR & ANOR
VS. CHUKWUOGOR (NIG) LTD &ORS (2007) LPELR-
8268(SC) PAGES 10 – 11 where the Supreme Court per
NGWUTA, J.S.C held as follows:

“I have had the opportunity of reading

before now the judgment just delivered
by my learned brother, Omage, J.C.A.
Though the issue raised in the appeal is
simple, its import is of fundamental
importance in justice delivery. The
reliefs in the two motions before the
lower Court are diametrically opposed.
The first motion is a quasi-criminal
matter, seeking to punish the
respondents therein for alleged violation
of Court order. The 2nd motion
questions the competence of the trial
Court to make the order allegedly
breached. As demonstrated by His
Lordship in the lead judgment, common
sense should have guided the lower
Court in the exercise of its discretion to
hear one motion before the other. If
common sense had prevailed it would
have been clear to the Court below that
the decision to take the motion for

7
committal before the one on jurisdiction
cannot be said to be judicial or judicious
exercise of discretion. In effect, the
appellant's case is that the order
allegedly disobeyed by them should not
have been made for want of jurisdiction.
Once the issue of jurisdiction is raised in
any proceedings the power of the Court
is limited to determining whether or not
it has jurisdiction in the matter. See
Madukolu v. Nkemdilim (1962) 2 SCNLR
341; Chiedozie v. Omosowan (1999) 1
NWLR (Pt. 586) 317. Apart from the
essential issue of jurisdiction the order
in which the Court below decided to
proceed would violate S. 36(1) of the
1999 Constitution for the Court has a
duty to hear the appellant on why the
order sought to be enforced against
them should not have been made in the
first place before hearing the motion for
committal if need be. It would appear
that the Court below adopted an
unnecessary sentimental approach to
alleged disobedience of its order and
forgot the fact that lack of jurisdiction
alleged by the appellant would render
the entire proceedings null and void. See
Sanyaolu v. INEC &Ors. (1999) 7 NWLR
(Pt. 612) 600 CA. The decision of the
Supreme Court in Ojukwu v. Military
Governor of Lagos State (1986) 3 NWLR
(Pt. 26) 39 was misinterpreted and was
applied by the trial Court. In Ojukwu's
case contempt was not in issue. The
Lagos State Government was in
contempt and the Apex Court held that
in the circumstances, a contemnor

8
 cannot be allowed to invoke the powers
of the Court. In this case not only has
contempt not been established but the
appellants sought to show that in law
they cannot be held guilty of contempt."

He contended that this Honourable Court ought to hold and come to the
conclusion that the Claimants application cannot be taken or heard in
priority over the pending challenge to the jurisdiction of this Honourable
Court and this Court lacks the competence and jurisdiction to entertain the
application without first resolving the issue of challenge to its jurisdiction.

He submitted that in so far as the 1st respondent’s application challenging

jurisdiction has been duly taken and heard and ruling reserved, the
applicant’s application under review is nothing short of a veiled attempt to
arrest the delivery of the said ruling, which is not permissible under the
law. He referred to the case of OJONYE VS. ONU & ORS., (2018)
LPELR-44212(CA) PAGES 28 TO 34 PARAGRAPHS E – A where the
Court of Appeal per SANKEY,J.C.A held as follows:

“It is evident that although the motion

purports to set aside the order for Judgment
by the lower Court, to all intents and
purposes it was aimed at "arresting" the
Judgment slated for delivery on the said date.
The law is since settled that any application
aimed at effectively stalling and/or arresting
the delivery of the Judgment of a Court after
a matter has been duly heard is unknown
and/or alien to our laws. There is no
provision for the arrest of a Judgment in our
Rules of Court as firmly stated by the apex
Court in Newswatch Communications Ltd V
Attah (2006) 12 NWLR (Pt. 993) 144 at 179,
paras F-G. In effect, such an application is at
all times incompetent.”

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He also referred to the case of BELLVIEW AIRLINES LTD VS. CARTER
HARRIS (PROPRIETARY) LTD (2016) LPELR-40989(CA) PAGE 33 –
34 PARAGRAPHS F – D where the Court of Appeal per GEORGEWILL,
J.C.A held as follows:

“... thus in law, such an application clearly

amounted to an ill - fated attempt to arrest
the ruling of the Court below, which
procedure is unknown to law. See Newswatch
Communications Limited v. Atta (supra) @ pp.
178 - 179. In Nicholas Ukachukwu v. Peoples
Democratic Party &Ors (2014) 4 NWLR (Pt
1396) 65 @ p. 90 - 91, where Kekere - Ekun
JSC, had succinctly pronounced inter alia
thus:
"The Applicant herein is seeking a stay
of proceedings. It raises the question as
to what proceedings are still pending
before the lower Court that could be
stayed? Once an appeal has been
argued, there is no other pending
proceeding, save the delivery of
judgment. In this case, although the
application purported to seek a stay of
proceedings at the lower Court, to all
intents and purpose it is aimed at
arresting the judgment already
reserved."

He urged Court to resolve this issue in the favour of the 1st respondent.

On issue 2, learned Counsel argued that the applicants’ application before

this Court seeks the discretion of this Court which is never exercised on the
mere asking but must be judicially and judiciously exercised having regard
to the established principles of the law. That it is generally the duty of the
applicants to satisfy the court by their affidavit evidence of their
entitlement to the relief sought and generally place sufficient materials

10
before the Court to enable the Court exercise its discretion judicially and
judiciously. He relied on the case of FORBY ENGR. CO. LTD .V. AMCON
(2018) LPELR – 43861 (CA) PAGE 33 PARAGRAPHS B – F where the
Court of Appeal held thus;

“Another trite position of the law is that a

judicial discretion is not granted as a matter
of course or just because it is applied for by a
party, but on satisfaction of a court that from
the relevant material facts and circumstances
of a case, a party has met the requirements of
the rules of court and is entitled to the
exercise of the discretion owes the duty and
bears the burden of placing sufficient
materials before the Court to enable it to
exercise the discretion one way or the other,
otherwise the application would fail,
outright...”

Arguing further, he stated that the applicants have woefully failed to meet
the requirements of the law and this application is therefore
unsubstantiated and liable to be struck out. He continued stating that the
reliefs sought in the statement of claim before this Court are all related to
and targeted at the ward congress election of 1st February, 2020 and the
subject matter of this suit strictly relates to the conduct of the ward
congress election of the 1st February, 2020 which means that the conduct
of the Local Government and State Congresses of the 1st Respondent on
the 7th and 14th March, 2020 now sought to be set aside in this application
was never the subject matter of this suit and as such, the pendency of this
suit cannot therefore be relied upon as the basis for adjudging the said
Congresses unlawful or denying the right of the 1st respondent to conduct
same.

He also stated that the order of this Court restraining the 1st respondent
from conducting its congresses was vacated by this Court and there was no
subsisting Order restraining the 1st respondent in that regard. He continued
stating that as a result of the withdrawal of Victor Idiakhheoa Esq.(former
2nd claimant). And the consequential striking out of his name from this suit,

11
all the pending processes and applications of the claimants including the
motion for interlocutory injunction which reflected him as among the
claimants became mis-constituted and incompetent before the Court and
liable to be amended and/or refiled by the applicants to remain extant. He
referred Court to Order 13 Rule 25(1) of the Edo State High Court Civil
Procedure Rules which provides as follows;

“where after the institution of a suit, any

change or transmission of interest or liability
occurs in relation to any party to the suit, or
any party to the suit dies or becomes
incapable of carrying on the suit, or the suit
in any other may become defective or
incapable of being carried on, any person
interested may obtain from the court, any
order requisite for curing the defect or
enabling or compelling proper parties to carry
on the proceedings.”

He contended that the applicants did not amend or re-file their processes
and did not also seek or obtain the leave of this Court to enable them carry
on the proceedings and as such the bare existence of the motion paper
before this Honourable Court at the time of the holding or conduct of the
congresses of 7th and 14th of March, 2020 cannot invalidate them or justify
the drastic measure of setting them aside to the detriment of the survival
an existence of the 1st respondent.

Contending further, he stated that there is nothing prejudicial about to this

case about the conduct of the Local Government and State Congresses of
the 1st respondent which does not form the subject matter of this case and
in respect of which there is no relief sought in the originating processes of
this suit. That if the applicants succeed in their claim, there is nothing
preventing the Court from granting their reliefs and making any other
consequential orders but on the other hand, if the congresses are set aside
at this stage, the 1st respondent will become comatose and bereft of
elected officers to manage its affairs including defending this suit. He

12
referred Court to the case of EZEBILO .V. CHINWUBA (1997) 7 NWLR
(PT 511) 108 AT 124 H – B where the Court held thus;

“A trial judge should be reluctant to grant an

interlocutory injunction if it will result in the
instability or disequilibrium of society or give
rise to unnecessary oppression or hardship to
the society and its people...

In such situation and their like, a trial judge,

instead of granting the application, should
order an acceleration of the hearing of the
matter and give judgment expeditiously.”

He continued stating that the applicants who duly participated in the said
congresses of the 1st respondent are therefore seeking to tear down the
process because it did not favour them which is a reprehensible act and
amounts to approbating and reprobating. That the reliefs sought by the
applicants is an equitable one and he who comes to equity must come
with clean hands but the applicants have not come with clean hands and
their attitude has been tardy and reprehensible and as a result, they
cannot therefore be entitled to the exercise of the court’s discretion in
their favour. He referred to the case of SEED VEST MICROFINANCE
BANK PLC & ANOR .V. OGUNSINA & ORS (2016) LPELR – 41346
(CA) PG 30 – 31 PAR. F – B where the Court held thus;

“It is often stated that one who

comes to equity must come with
clean hands (or alternatively, equity
will not permit a party to profit by
his own wrong). In other words, if
you ask for help about the actions
of someone else but have acted
wrongly, then you do not have clean
hands and you may not receive the
help you seek. I am not saying that
a ‘bad person’ cannot obtain the aid
of equity, no, equity does not

13
 demand that its suitors shall have
led blameless lives. All I am saying
is that if there is a nexus between
the applicant’s wrongful act and the
rights he wishes to enforce, then
the defence of unclean hands may
apply.”

He submitted that the applicants have not been prejudiced in any way in
the conduct of their case before this Court and have not suffered any
damage or loss on account of the congress. He urged this Court to resolve
issue 2 in the 1st Respondent’s favour and strike out their application with
substantial cost.

On the 18th day of May, 2020, learned counsel to the applicants filed a
further affidavit of 9 paragraphs, 1 exhibit and a reply on points of law in
support of the applicants’ motion on notice before this Court.

From the reply, learned counsel stated that for an Affidavit to be valid, it
must have been sworn to before the appropriate authority (in this case,
before a Commissioner for Oaths). The said deponent must have signed
the said Affidavit in the very presence of the Commissioner for Oaths and
thereafter, the said Commissioner of Oaths would sign the Affidavit.

He referred to Sections 108, 109 and 117 (4) of the Evidence Act
2011 which provides thus:

108. “Before an affidavit is used in the court for

any purpose, the original shall be filed in
the court, and the original or an office copy
shall alone be recognised for any purpose in
the court.” (emphasis, mine).

109. “Any affidavit sworn before any judge,

officer or other person duly authorised to
take affidavits in Nigeria may be used in the

14
 court in all cases where affidavits are
admissible.” (emphasis, mine).

117(4) “An affidavit when sworn shall be signed

by the deponent or if he cannot write or is
blind, marked by him personally with his
mark in the presence of the person before
whom it is taken”. (emphasis theirs).

Arguing further, he stated that the purported Counter Affidavit of Chief Dan
Orbih, was not deposed to, or sworn to before the Commissioner for Oaths.
Their submission is predicated on the following grounds:

a. The said purported affidavit of Chief Dan Orbih is not an original

signature but it is a photographed and scanned impression. This is
so clear on page 6 of the said Purported Counter Affidavit. It is
very clear that the signature of the Commissioner for Oaths was
signed and the signature on top of the deponent- shows scanned
or photographed impression, not an original signature of the
deponent.

b. The very fact that the signature on top of the Deponent’s column
in the Supporting Affidavit is a scanned or photographed
impression is clear proof that the said signature was not SIGNED
before the Commissioner of Oaths contrary to the mandatory
provision of Sections 108, 109 and 117(4) of the Evidence
Act 2011.

c. Inferentially, the said Affidavit was not signed. Rather, a signature

was photographed on top of the column for signing of signature.

He continued stating that flowing from the fact that Chief Dan Orbih did
not sign the supporting Affidavit before the Commissioner for Oath, he
therefore submits that the supporting Affidavit is incompetent and thus
liable to be struck out.

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He referred Court to the case of ALIYU v. BULAKI (2019) LPELR-
46513(CA), wherein the Court of Appeal, per Wambai J.C.A at pages 16-
17, paragraphs D-C, and while referring to the provisions of Section 117(4)
the Evidence Act 2011, held thus:

“Further to the requirement of swearing

to the affidavit by a deponent and the
exclusion of any affidavit or deposition
shown to have been sworn before any of
the four classes of persons mentioned in
Section 112, a further requirement to
authenticate an affidavit sworn before a
person duly authorized to take oaths is
provided in Section 117 (4) as follows;
"An Affidavit when sworn shall be
signed by the deponent or if he cannot
write or is blind, marked by him
personally with his mark in the presence
of the person before whom it is taken."
The combined effect of Sections 112 and
117 (4) is that for an affidavit to be
admitted in evidence or allowed to be
used as evidence, it must not only be
sworn before a person so authorized to
administer the oath such as the
commissioner for oaths or a Notary
Public, IT MUST ALSO BE SIGNED IN
THE PRESENCE OF SUCH AN
OFFICER.”(emphasis, theirs).

He contended that the failure of Chief Dan Orbih to sign the said Affidavit
before the Commissioner for Oaths is a fundamental vice which vitiated the
Affidavit and he urged Court to so hold.

16
He also stated that when the supporting affidavit of Chief Dan Orbih is
struck out, then all the facts and circumstances in support of the
Claimants/Applicants’ Motion filed on 17th March 2020 will remain
unchallenged, credible, admitted and established.

Contending further, he stated that at pages 7, 8, 9 10 and 11 of the 1st

Respondent’s Written Address, they contended that this Honourable Court
has no jurisdiction to entertain the Claimants/Applicants’ Motion on Notice
filed on the 17th day of March 2020 on the alleged ground that the Court
must determine the issue of jurisdiction before taking any further steps in
this proceedings. He continued stating that this Honourable Court has the
requisite jurisdiction to entertain and determine the Applicant’s motion
under consideration, because the said application relates to inherent
powers of this Honourable Court in a contempt proceedings to protect the
sanctity and majesty of this Court and to protect the subject matter of this
case. This contempt proceedings, indeed, rank higher and above any
other application that has not been determined by this Court.

He referred Court to the case of EBHODAGHE VS. OKOYE (2004)

LPELR – 987 (SC), where the supreme Court held thus:

"While it is a settled law that when an

issue of jurisdiction is raised by a party,
the court ought generally to take it first,
where however due to a combination of
factors an act which would impugn on
the majesty of a court and likely to bring
the court to odium and disrespect is
done, it is I dare say, not just desirable
but essential for the court to first look
into the matter of contempt before
proceeding on the issue of jurisdiction.

17
 For the Court of Appeal to view the
situation in this case as purely based on
the recognised settled law that once an
issue of jurisdiction is raised it must be
taken first, shows with greatest respect
that it missed the essence of the matter.
In other words, at all times it is the duty
of the court to guard jealously its
powers and should give first
consideration to the proceedings in
contempt of its court even when the
court is faced with the question of its
competence to adjudicate on a matter
from which the contempt issue arises."
He urged Court to apply the above position of the law as stated by the
Supreme Court and accordingly hold that this Court has the jurisdiction to
entertain the applicant’s motion on notice filed on the 17th day of March
2020.

He also stated that the contention by the 1st Respondent that the contempt
proceedings herein was done outside the face of the Court, and thus the
Court has to determine the jurisdictional challenge first, holds no water
when placed with the decision of the Supreme Court in Ebhodaghe Vs.
Okoye (supra). He continued stating that it is not the law that the Court
must deliver its ruling or judgment once it has been adjourned for Ruling
or judgment as contended by the Respondent. It is the law that deserving
circumstances, such as in the present case, the Court can defer its Ruling
or judgment.

Contending further, learned counsel stated that the 1st Respondent cannot
seriously contend that it did not take any step that are prejudicial to the

18
subject matter in this case. That the 1st Respondent upon being served
with the originating process in this case, has no such powers or option of
taking any steps that will undermine the subject matter of this case.

He also stated that once parties submit to the adjudicatory powers of the
Court, it can no longer resort to self help. He referred to the case of APC
& ors v. Karfi & Ors (2017) LPELR-47024 (SC). He submitted that the
actions of 1st Respondent in recognising the results of the Ward congresses
by using same to conduct the Local Government Area and State
Congresses in utmost prejudice to the subject matter of this case, is
contemptuous and such actions are invariably liable to be set aside. That
the 1st Respondent also recklessly flouted and treated with contempt, the
directive of this Court issued on the 11th day of March 2020 for the parties
to maintain the status quo.

What then is the meaning of status quo he asked? He referred Court to the
case of AKAPO V. HAKEEM-HABEEB & ORS (1992) LPELR-325(SC),
the Supreme Court, Per NNAEMEKA-AGU ,J.S.C ( P. 58, paras. E-G ) held
thus:

"To begin with, the literal meaning

of status quo ante bellum is the
state of affairs before the
beginning of hostilities. So, the
status quo that ought to be
maintained in this case is the state
of affairs that existed before the
defendants' forcible take over of
the management and control of the
family properties which constitutes
the wrongful act complained of in

19
 the application. See Thompson v.
Park (1944) 1 K.B. 408."

He submitted stating that the 1st Respondent ought to have maintained the
status quo which was the state of affairs before the conduct of the Ward
congresses which the Claimants/Applicants are challenging by this Suit.
That the Respondents were not obliged to take further steps in conducting
the Local government and State Congresses during the pendency of this
suit. Also that the Ward, Local Government and State Congresses are
cumulative and dependent on one another. It is the Ward Congress result
that must be used to conduct the Local Government Congress. And the
Local Government Congress must be used to conduct the State Congress.
This was well captioned in Paragraph 24 of the Statement of Claim which
has been reproduced above.

He urged Court to uphold this application and set aside the contemptuous
Local and State Congresses which was conducted to destroy the subject
matter of this case.

Further more, learned counsel continued that at pages 14 and 15 of the

Written address of the 1st Respondent, which counsel also numbered as
Paragraphs 3.3, the 1st Respondent contended that the Applicants’ Motion
on Notice for Interlocutory Injunction was allegedly incompetent, as,
according to counsel, the said Motion ought to have been amended and re-
filed to remove the name of the earlier 2nd claimant who withdrew from the
case and his name was struck out. Reliance was placed on Order 13 Rule
25 of the Edo State High Court (Civil Procedure) Rules 2018 which
learned counsel stated is not in our laws.

He urged court to discountenance the contention of the 1st Respondent as

same is predicated on a non-existent Rules of court.

20
He also stated that even at that, assuming but not conceding that the
provision quoted and described by the 1st Defendant/Respondent as Order
13 Rule 25(1) of the Edo State High Court (Civil Procedure) Rules, 2018
exist under any other provision of the Rules, we most humbly submit that
the said rules, directly or remotely has nothing to do with the
circumstances of this application. He urged the Court to so hold.

On the 19th day of May 2020, learned Counsel to the to the 1st respondent
filed a motion on notice praying this Honourable Court for the following;

1. An order striking out the Claimants motion dated the 16th

day of March, 2020 and filed on the 17th day of March,
2020 wherein they sought an order of this Honourable
Court to set aside the Local Government and State
Congresses organized by the 1st Defendant on the 7th and
14th day of March, 2020 respectively for want of
jurisdiction on the part of this Honourable court to
entertain the said motion.

IN THE ALTERNATIVE

2. An Order directing the determination and delivery of the

Ruling on the 1st Defendant’s motion argued on 11th day of
March,2020 challenging the jurisdiction of this Honourable
Court to entertain this suit before the conduct of any
further proceedings including the proceedings for the
hearing and determination of the Claimants’ motion filed
on 17th day of March,2020 in this case.

The grounds for this application are as follows;

i. That the Claimants commenced this suit vide a writ of summons

and statement of claim filed on 5th February, 2020 complaining
about the conduct of the Ward Congresses of the 1st Defendant
held on the 1st day of February, 2020 in Edo State.

21
ii. That in reaction to the claim, the 1st Defendant filed a Motion on
Notice on 13thFebruary2020 challenging the competence of the
suit and the jurisdiction of this Honourable Court to entertain
same.
iii. That before this Honourable court heard the 1st Defendant’s
motion challenging jurisdiction on the 11th day of March, 2020, the
Claimants orally moved the court to set aside the Local
Government congress conducted by the 1st Defendant/Respondent
on the 7thday of March, 2020, on the ground that the said
congress was held during the pendency of this suit and the motion
for interlocutory injunction, and further urged the court that his
oral application to set aside the congress should be heard first
before the 1st Defendant’ motion challenging jurisdiction of this
Honourable Court.
iv. That after listening to the parties this Honourable Court declined
the Claimants’ application and proceeded with the hearing of the
1st Defendant’ motion challenging the jurisdiction of this
Honourable Court to entertain it.
v. That the Claimants/Applicants did not appeal against the decision
of this Honourable Court refusing their oral application to set aside
the Local Government congress held on the 7th day of March, 2020
and the decision to proceed with the hearing of the motion on
notice challenging the jurisdiction of this Honourable court to
entertain it.
vi. That the Claimants’ motion filed on the 17th day of March, 2020 in
this suit is tantamount to an invitation to this Honourable court to
sit on appeal over his previous decisions:
(a) Refusing to set aside the Local Government congress
organized by the 1st Defendant/Applicant on the 7thday of
March, 2020.
(b) The decision of this Hon to proceed with the hearing and
determination of the 1st Defendant/Applicant motion
challenging the jurisdiction of this Honourable Court to
entertain the suit at that stage of the proceedings.
vii. That issues were duly joined on the said Motion on Notice of the
1stDefendant, which was duly taken and heard by this Honourable
Court on the 11th day of March2020 and ruling reserved to be
delivered on 31st day of March2020.

22
viii. That while the ruling was still being awaited, the Claimants filed a
Motion on Notice on 17th March, 2020 complaining about an
alleged contempt ex-facie curie by the 1st Defendant and praying
for the setting aside of certain steps allegedly taken by the 1st
Defendant during the pendency of this suit including the conduct
of its Local Government and State Congresses of 7th and 14th
March, 2020 respectively.
ix. That the said application of the Claimants is designed and targeted
at arresting the delivery of the ruling of this Honourable Court on
the fundamental issue of challenge to its jurisdiction which has
already been argued and to mislead the Court into assuming
jurisdiction to conduct further proceedings without resolving the
issue of jurisdiction already taken and heard by the Court.
x. That the issue of contempt ex-facie curie is not among the issues
of law which can be taken and determined by the Court without
first resolving the issue of challenge to its jurisdiction and the 1st
Defendant is constitutionally guaranteed the right to know the
outcome of its challenge to the jurisdiction of this Honourable
Court before any further proceedings in this case.
xi. That unless the ruling on the issue of challenge to the jurisdiction
of this Honourable Court is delivered before the conduct of any
further proceedings in this matter, the 1st Defendants right to fair
hearing may be prejudiced as the Court will invariably be
assuming jurisdiction over the 1st Defendant who has disputed its
jurisdiction and without first resolving that issue, contrary to the
established position of the law.

The motion is supported by an affidavit of 10 paragraphs and a written

address. From the address, learned counsel formulated 2 issues for
determination which are;

1. Whether this Honourable has the jurisdiction to

entertain the Claimants/Applicants’ motion dated
the 16th day of March, 2020 and filed on the 17th day
of March, 2020.

ALTANATIVELY

23
 2. Whether upon a proper consideration of the relevant
and applicable principles of the law, the 1st
Defendant/Applicant can be entitled to the grant of
the relief sought in this application, in all the
circumstances of this case?

Arguing issue one, learned counsel stated that during the proceedings in
this suit on the 11th day of March, 2020, the Claimants orally applied to this
Honourable Court to set aside the Local Government congress organized
and conducted by the 1st Respondent on the 7thday of March, 2020, on the
ground that the said congresses were held during the pendency of this suit
and motion on notice for interlocutory injunction. That the Applicants
further contended that on the said date, that this Honourable Court should
hear and determine their application to set aside the said congress before
entertaining the 1st respondent’s motion challenging the jurisdiction of this
Honourable Court to entertain this suit. After hearing argument on the
application, this Honourable Court refused it, when it held that it will
proceed to hear and determine the 1st Respondent’s motion challenging the
jurisdiction of this Honourable Court to entertain same. That the applicants
did not appeal against the decision of this Court but instead filed an
th
application on 17 of March 2020 to once more seek to set aside the Local
Government and State congresses conducted by the 1st Respondent before
the delivery of the ruling on the motion challenging the jurisdiction of this
Honourable Court to entertain this suit.

Arguing further, he stated that the Applicant’s application dated the 16thbut
filed on the 17th of March, 2020 is deliberately calculated and designed to
re-litigate the relief that the 1st Defendant’s Local Government Congresses
conducted on the 7th of March, 2020 be set aside on the alleged ground
that the said congresses were conducted during the pendency of this suit
and the Motion on Notice for interlocutory injunction.

He continued stating that the Applicant’s motion filed on the 17th of March
2020 is a challenge to the decision of this Honourable Court to hear and
determine the 1st Respondent’s motion challenging the jurisdiction of this
Honourable Court. This Honourable Court decided to hear and determine
the Application challenging its jurisdiction to entertain this suit on the 11th
of March 2020 despite the stiff opposition by the Claimants, counsel. On

24
the said date this Honourable Court also declined the Claimants’ Application
to set aside the 1st Defendant’s Local Government congresses conducted
on the 7th of March 2020. This Honourable Court is now functus officio as
far as these two already settled issues are concerned.

He contended that a court is said to be functus officio in respect of a

matter if the court has fulfilled or accomplished its function in respect of
that matter and it lacks potency to review, reopen or revisit the matter.
Once a court delivers its judgment or ruling on a matter it cannot revisit or
review the said judgment or ruling except under certain conditions. More
importantly, a court lacks jurisdiction to determine an issue where it is
functus officio in respect of the issue or where the proceedings relating to
the issue is an abuse of court process. He referred Court to the case of
DINGYADI VS. INEC (2011) 18 NWLR (PT. 1224) 154 as follows:

“The principle of functus officio connotes that

a court having given its decision in a matter
before it ceases to have the power to re-open
the same matter all over again in the same
proceedings. Where a court has duly
performed its duty by handing down its
decision or ruling, it has exhausted all its
powers with regard to that matter. And so,
the court becomes functus officio and
incapable of giving any decision or making
any competent orders with regard to the
same matter it has previously decided for
want of the jurisdiction to do so. Any defect in
regard to the court’s jurisdiction to deal with
the matter will render the proceedings nullity,
the court having become functus officio.”

He also stated that this Honourable court having given its ruling on the 11th
day of March, 2020 in respect of this same matter as it appears on the
motion of the Claimants/Applicants dated the 16th day of March, 2020 and
filed on the 17th day of March, 2020, this Honourable Court no longer has
the jurisdiction to entertain the Claimants’ offensive motion. Any attempt to
do so will be tantamount to this Honourable court sitting on appeal over

25
the issues that were orally raised by the Claimants’ counsel on the 11th day
of March, 2020 but refused by the Court.

He submitted that the only remedy available to the aggrieved Applicants

who were dissatisfied with the refusal of this Honourable Court to set
aside the 1st Respondent’s Local Government Congresses held on the 7th of
March, 2020 was to appeal to the Court of Appeal. He relied on the case
of AMAH &ORS. V. NWANKWO [2007] 12 NWLR (PT. 1049) 558
C.A where the Court held thus;

“Once a court of competent jurisdiction or

the Court of Appeal gives a judgment,
ruling or order it becomes functus officio.
Consequently, a panel of the Court of
Appeal under whatever guise cannot alter
the order, ruling or judgment of another
panel except to correct clerical mistakes or
some error arising from any accidental slip
or omission. The only remedy available to
an aggrieved party is to appeal to a higher
court or the Supreme Court respectively. In
the instant case, the Court of appeal
granted leave to the appellants to amend
their grounds of appeal. Consequently, the
Court of Appeal was functus officio in
respect of the competency of the grounds
of appeal.”

He urged Court to dismiss the Applicant’s motion of 17th March 2020 for
want of jurisdiction to entertain it because this Honourable has become
functus officio in respect of the issues arising for determination.

Arguing issue two, the learned (SAN) stated that jurisdiction is the life wire
of adjudication and where the jurisdiction of the court to entertain any suit
or application is challenged, it must be resolved first and the court is not
entitled to conduct any other proceedings or make any orders other than

26
to resolve the issue of jurisdiction. He referred Court to the following
cases;
i. AJAYI Vs. ADEBIYI (2012) 11 NWLR (Pt.1310) 137 at
202 paragraphs E – F where the apex court per Peter Odili
JSC stated the law thus:

“As to the time when an issue of jurisdiction can

be raised at any time and at any stage of the
proceedings even at this level on appeal. This point
has to be reiterated that once it is raised,
everything else has to stop to give the prime
position of hearing on the jurisdictional issue”.

ii. MV ARABELLA Vs. N.A.I.C (2008) 11 NWLR (Pt.1097)

182 at page 209 paragraph H and 212 paragraph A – C
where the apex court per Ogbuagu JSC held that:

“…the issue of jurisdiction which can be raised at

any stage by either the parties, or the court, is
decided when the point is taken. See the case of
Adani v. Igwe (1957) 1 FSC 87 at 88, (1957)
SCNLR 396. This is also why, it is settled that
whenever an issue of jurisdiction is raised, a court
should deal with it first or promptly or
expeditiously, as it has jurisdiction, to decide
whether or not it has jurisdiction. See Nalsa and
Team Associates v. NNPC (1996) 3 NWLR (Pt.439)
621 at 637.”

iii. NWANKWO vs. Y'ADUA (2010) 12 NWLR (Pt. 1209) 512

at 562where the Supreme Court made it clear and held that:

"...where issue of a court's jurisdiction is raised in

any proceedings and at any stage, it must be taken
first, immediately, promptly, or expeditiously."

27
 iv. SUN INSURANCE NIGERIA Vs. UMEZ ENGINEERING
CONSTRUCTION COMPANY LTD, Appeal NO. SC.
316/2010 dated 5th June, 2015 where the apex court (Per
MAHMUD MOHAMMED, CJN) held that:-

“The Law is also well settled that the question of

jurisdiction is so fundamental that the
adjudicating court should determine the issue first
before embarking on any proceedings for hearing
on the merit”. (underlining supplied)

v. SOLUDO VS OSHIGBO (2009) 18 NWLR (Pt. 1173) 290

at 295 – 296 C – Dwhere the Supreme Court held that:-

“A Court without jurisdiction cannot make valid

orders……”

vi. ASOGWA vs. CHUKWU (2003) 4 NWLR (Pt. 811) 540 at

578 – 579 D and D – Fwhere the Court of Appeal (per Pats –
Acholonu JCA as he then was) held that:-

“No amount of urgency should compel a Court in

the context of Nigerian jurisprudence to make an
Order when it has no competence or its power to
adjudicate on the matter is called into question
and it is yet to be argued and resolved…… the
Court can only make a valid order after it has
assumed jurisdiction”

vii. NDIC vs. C.B.N (2002) 7 NWLR (Pt. 766) Pg. 272 at 292
Para H, where the Supreme Court (per Uwaifo JSC) held that:-

“the Court must not give an Order in the suit

affecting the Defendants until the issue of
jurisdiction is settled when it has been raised”.

Arguing further, he stated that the records of this Honourable Court will
show that the 1st Respondent filed a Motion on Notice on the 13th February,

28
2020 challenging the competence of this suit and the jurisdiction of this
Honourable Court to entertain same. That application was duly taken and
heard on the 11th day of March 2020 and ruling was reserved to be
delivered on the 31st of March 2020. While the ruling was still pending to
be delivered, the Applicants filed a motion on notice complaining about
prejudicial steps allegedly taken by the 1st Respondent during the
pendency of the suit and praying for the setting aside of “purported”
Congresses of the 1st Defendant. He continued stating that this Honourable
Court has no competence or jurisdiction to entertain the Applicant’s
application without first resolving the issue of challenge to its jurisdiction
raised by the 1st Respondent which has already been heard and adjourned
for ruling.

He contended that in so far as the 1st Respondent’s application challenging

jurisdiction has been duly taken and heard and ruling reserved, the
Applicants’ application under review is nothing short of a veiled attempt to
arrest the delivery of the said ruling, which is not permissible under the
law. He referred to the case of OJONYE VS. ONU & ORS., (2018)
LPELR-44212(CA) PAGES 28 TO 34 PARAGRAPHS E – A where the
Court of Appeal per SANKEY,J.C.A held as follows:

“It is evident that although the motion

purports to set aside the order for Judgment
by the lower Court, to all intents and
purposes it was aimed at "arresting" the
Judgment slated for delivery on the said date.
The law is since settled that any application
aimed at effectively stalling and/or arresting
the delivery of the Judgment of a Court after
a matter has been duly heard is unknown
and/or alien to our laws. There is no
provision for the arrest of a Judgment in our
Rules of Court as firmly stated by the apex
Court in Newswatch Communications Ltd V
Attah (2006) 12 NWLR (Pt. 993) 144 at 179,
paras F-G. In effect, such an application is at
all times incompetent.”

29
Contending further, he stated that by filing and arguing the application
challenging the competence of this suit and the jurisdiction of this Court to
entertain same, the 1st Respondent has not submitted to the jurisdiction of
this court and is therefore entitled as of right to know the outcome of that
application before any further proceedings can be conducted. That as a
corollary to the said right of the 1st Respondent, this Honourable Court is
duty bound to determine or pronounce a decision, one way or another, on
the motion challenging jurisdiction to enable the 1st Respondent know its
fate before any further proceedings are conducted. He referred Court to
the case of UZUDA Vs. EBIGAH LPELR(2009) SC 348/2002 at page
22 where the Supreme court per MOHAMMED, JSC (as he then was) held
that:

“…where a Court fails to give full

consideration and determination of the case
of a party, it is a situation touching on the
violation of the party's right to fair hearing. It
is trite that where there is a breach of a
party's constitutional right to fair hearing,
then the proceedings are vitiated thereby
requiring the intervention of an appellate
Court on a complaint of the affected party.
See Amadi v. Thomas Aphin& Co. Ltd. (1972)
1 All NLR (Pt. 1) 409, Adigun v. Attoney-
General Oyo State (1987) 1 NWLR (Pt. 53)
678 and Nwokoro v. Osuma (1990) 3 NWLR
(Pt. 136) 22 at 32 - 33”

He urged this Honourable Court to hold and come to the conclusion that
the Applicant’s application cannot be taken or heard in priority over the
pending challenge to the jurisdiction of this Honourable Court and this
Court lacks the competence and jurisdiction to entertain the application
without first resolving the issue of challenge to its jurisdiction.

30
On the 20th day of May, 2020, learned counsel to the applicants filed a
counter affidavit of 11 paragraphs and a written address wherein he
formulated 3 issues for determination which are;
a. “Whether the 1st defendant/respondent’s failure to meet the condition
precedent before filing this application does not render
incompetent(sic).”
b. “Whether the 1st defendant/applicant’s motion on notice dated the
14th day of May, 2020 is not an abuse of Court Process.”
c. “Assuming but not conceding that the Supporting affidavit of Chief
Dan Orbih is valid, whether paragraphs 7 (i)-(xiv) of the said affidavit
does not contain legal arguments, objections, prayers, conclusions
and opinions and thus liable to be struck out in obedience to Section
115(1) and (2) of the Evidence Act, 2011.”

Arguing issue one, learned counsel stated that this suit was adjourned for
hearing of the applicant’s application but the 1st respondent filed their
application on the 14th day of May 2020 in a bid to truncate the hearing of
the applicants’ application without first complying with the provisions of
Order 30 Rule 8 of the Edo State High Court (Civil Procedure) Rules, 2018
which provides thus;

“when a cause is called up for hearing,

further hearing, defence or continuation
of defence and either party files a
motion or an application which by this
rules is not ripe for hearing, the party
filing the motion or application shall at
the same time of filing pay to the court a
file(sic) of N20,000 only.”

He referred Court to the case of ABIA STATE TRANSPORT

CORPORATION & ORS .V. QUORUN CONSORTIUM LTD (2009)
VOL. 172 LRCN PG 134 AT 137 RATIO 2 where the Court held thus;

“The settled law is that rules of court of each

court are not made for fun, BUT TO BE
OBEYED. ONCE SUCH RULES ARE IN PLACE

31
 THEY MUST BE ADHERED TO AND NOT
CONTRAVENED OR IGNORED.”

He submitted that the conditions precedent to the filing of the said 1st
respondent’s motion dated the 14th day of May, 2020 has not been fulfilled.
He referred Court to the case of INAKOJU & ORS .V. ADELEKE & ORS
(2007) VOL. 143 LRCN AT PG 82, PARA F – K where the Supreme
Court held thus;

“it is good law that where the constitution or

a statute provides for a pre – condition to the
attainment of a particular situation, the pre –
condition must be fulfilled or satisfied before
the particular situation will be said to have
been attained or reached.”

He urged Court to hold that failure of the 1st respondent to pay the said
penalty makes the motion defective and ought to be struck out.

On issue 2, learned counsel stated that the 1st respondent’s application

dated the 14th day of May, 2020 is a clear abuse of the process of this
Court and liable to be dismissed. He referred Court to Order 40 Rules 2(2)
of the Edo State High Court Civil Procedure Rules, 2018 which provides
thus;

“where the other party intends to oppose the

application, he shall within 7 days of the
service on him of such application, may file a
counter affidavit and shall accompany it with
his written address.”

He also stated that by the rules of this Court, the 1st Respondent can only
respond to the applicants’ motion by filing a counter affidavit and written
address which they did but still went ahead to file the said motion which is
basically an opposition to the motion filed by the applicants. He referred
Court to the case of DOWELL SCHLUMBERGER (NIG.) .V. ANIEKAN &
ANOR (2018) LPELR – 44DII (CA) where the Court held thus;

32
 “...THE LAW GENERALLY IS THAT A
PARTY CANNOT BE ALLOWED TO RAISE
A PRELIMINARY OBJECTION IN THIS
COURT TO THE HEARING OF A MOTION,
AS THERE IS NO PROVISION IN OUR
RULES FOR THAT...A PARTY IS EXPECTED
TO FILE A COUNTER AFFIDAVIT, TO
OPPOSE A GIVEN MOTION OR OPPOSE
SAME ON POINT OF LAWS WHEN
ARGUED...SEEKING TO TERMINATE A
NOTICE OF MOTION BY WAY OF A
PRELIMINARY OBJECTION IS UNKNOWN
TO OUR RULES OF COURT...AND I THINK,
IT SHOULD BE SO, AS IT SIMPLY DOES
NOT SOUND REASONABLE OR PROPER
FOR A PARTY, AS IN THIS CASE, TO JUST
RISE UP TO FRUSTRATE THE HEARING
OF A MOTION HE THINKS IS
INCOMPETENT, RELYING ON GROUNDS
THAT CAN ONLY BE CONSIDERED AT THE
HEARING OF THE MAIN MOTION! The
Objector is such a situation, should
rather be patient; allow the motion to be
heard, while opposing the same, using
the same particulars he would want to
use to frustrate the hearing of the
motion... THIS PRELIMINARY
OBJECTION, THEREFORE SUFFERS THE
SAME LEGITIMACY PROBLEMS AND IS
CONDEMNED TO THE SAME DISABILITY
OF INCOMPETENCE.”

He contended that it is trite that once the court comes to a conclusion that
a process is an abuse of court process, then, the Court had a duty and
power to dismiss same. He referred Court to the case of AFRICAN
REINSURANCE CORP. V. JDP CONSTRUCTION (NIG) LTD (2003)
LPELR – 215 (SC) where the Court held thus;

33
 “where the Court comes to the
conclusion that its process is abused,
the proper order is that of dismissal of
the process...”

He submitted that this Court has the powers and indeed the duty to
dismiss the motion on notice and urged Court to do so accordingly.

On issue 3, learned counsel argued that affidavits must contain only facts
without more. He relied on Section 115(1) of the Evidence Act, 2011 which
provides thus;

“Every affidavit used in the court shall

contain only a statement of fact and
circumstances to which the witness deposes,
either of his own personal knowledge or from
information which he believes to be true.”

He also referred Court to Section 115 (1) of the Evidence Act, 2011 which
provides thus;

“An affidavit shall not contain extraneous

matter by way of objection, prayer or legal
argument or conclusion.”

Arguing further, he stated that paragraphs 7(i)-(iii) of the affidavit of Chief

Dan Orbih only points to the fact that the entire paragraph is incurably
offensive to Section 115 of the Evidence Act (Supra) and thus, liable to be
struck out. He urged Court to act accordingly and strike out the said
paragraph 7.

Learned counsel in the said written address formulated an additional issue

for determination which is;

“whether the motion on notice by the 1st

defendant/applicant dated and filed on the
14th day of May 2020 is totally lacking in
merits and liable to be dismissed.”

34
Arguing the issue, learned counsel stated that the application of the 1st
respondent lacks merit and is liable to be dismissed by this Honourable
Court because this Honourable Court has the requisite jurisdiction to hear
and determine the applicants’ application, the court is bound to determine
the motion to set aside any step or action with a view of prejudicing the
subject matter of the case and the court has the inherent jurisdiction to
defer its ruling.

He submitted that the court having exercised its discretion to defer its
ruling by adjourning same, the 1st respondent’s motion filed for hearing
amounts to an abuse of court process and he urged this court to dismiss
the application of the 1st respondent.

I have just succinctly summarised all the processes before this Court and I
would like to commend the industry of learned counsel on both sides of the
divide for the industry that was put into all the processes. Their brilliant
effort made my job easier.

Now, I would begin with the motion of the 1st respondent filed on the 19th
day of May, 2020. If I may reiterate, the motion is praying this Honourable
Court for the following,

1. An order striking out the Claimants motion dated the 16th

day of March, 2020 and filed on the 17th day of March,
2020 wherein they sought an order of this Honourable
Court to set aside the Local Government and State
Congresses organized by the 1st Defendant on the 7th and
14th day of March, 2020 respectively for want of
jurisdiction on the part of this Honourable court to
entertain the said motion.

IN THE ALTERNATIVE

2. An Order directing the determination and delivery of the

Ruling on the 1st Defendant’s motion argued on 11th day of
March,2020 challenging the jurisdiction of this Honourable
Court to entertain this suit before the conduct of any

35
 further proceedings including the proceedings for the
hearing and determination of the Claimants’ motion filed
on 17th day of March,2020 in this case.

By the very nature of this motion, it is glaring that it is in opposition of the

Applicants’ motion filed on the 17th day of March, 2020. It is an answer to
the said motion.

Order 40 Rule 2(2) of the Edo State High Court Civil Procedure Rules, 2018
provides thus;

“where the other party intends to oppose the

application, he shall within 7 days of the
service on him of such application, file his
written address and may accompany it with a
counter affidavit.”

Surprisingly, learned counsel to the 1st respondent filed a counter affidavit

as well as a written address in opposition to the applicants’ motion which
made me wonder why he filed a motion to oppose the applicants’ motion.
Was he trying to err on the side of surplusage? Unfortunately, this Court
has no answer to that. The other question that weighed heavily on my
mind is can the 1st respondent file a preliminary objection against the
applicants’ motion? Learned Counsel to the applicants refereed court to a
case which I found very useful and which I hereunder reproduce for clarity
and better understanding DOWELL SCHLUMBERGER (NIG.) .V.
ANIEKAN & ANOR (2018) LPELR – 44DII (CA) where the Court held
thus;

“...the law generally is that a party

cannot be allowed to raise a preliminary
objection in this court to the hearing of a
motion, as there is no provision in our
rules for that...a party is expected to file
a counter affidavit, to oppose a given
motion or oppose same on point of laws
when argued...seeking to terminate a
notice of motion by way of a preliminary

36
 objection is unknown to our rules of
court...and I think, it should be so, as it
simply does not sound reasonable or
proper for a party, as in this case, to just
rise up to frustrate the hearing of a
motion he thinks is incompetent, relying
on grounds that can only be considered
at the hearing of the main motion! The
Objector is such a situation, should
rather be patient; allow the motion to be
heard, while opposing the same, using
the same particulars he would want to
use to frustrate the hearing of the
motion... this preliminary objection,
therefore suffers the same legitimacy
problems and is condemned to the same
disability of incompetence.”

In the case of ONYEGIRIGWAM & ORS .V. UZOKWE & ORS (2019)
LPELR – 46608 (CA) PP 8 – 14 PARAS C – C the Court held thus;

“...suffice it to say that the propriety of filing

a P. O. to a motion filed by an applicant either
pursuant to the rules of the court and/or
under its inherent jurisdiction, was given
extensive consideration by this Court in its
decision (unreported) delivered on
28/5/2018 in APPEAL NO: CA/OW/116/2013
– NIGERIA BOTTLING COMPANY LIMITED .V.
VACU – NAK BEVERAGES (NIGERIA)
LIMITED...it was stated amongst others to
the effect that the filing of a notice of p.o to a
motion has no foundation in the rules of this
court and that doing so under the inherent
jurisdiction of this court equally cannot
validate such a notice against the backdrop of
the concept of ‘inherent jurisdiction of this

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 court’...in any event the court
discountenanced the p.o filed in the NBC Case
(supra), specifically relying on the case of
EGWU .V. MAINSTREET BANK LTD (2017)
LPELR – 43395 (CA) wherein Onyemenam
JCA stated thus :- Order 10 of the Court of
Appeal Rules provides for preliminary
objection in an appeal...there is no place for
preliminary objection in notice of motions in
the Court of Appeal Rules....accordingly, a
preliminary objection is to be filed only when
there is a fundamental defect in the
appellant’s process in an appeal as its
purpose is to terminate an appeal principally
on ground of incompetence...seeking to
terminate a notice of motion by way of
preliminary objection is unknown to our rules
of court...it is therefore my view that the
preliminary objection raised by the
respondent in challenge of the applicant’s
notice of motion is not proper in law and as
such incompetent. The same is hereby
discountenanced...”

In the same vein, filing a preliminary objection or motion on notice in

response to applicant’s motion on notice is unknown to our rules of court.
The combine reading of the authorities cited above and Order 40 also cited
above goes to show that once an application is filed, what is expected of
the opposing party is to file a written address and a counter affidavit in
opposition and not a motion.

In the case of MAKO .V. UMOH (2010) LPELR – 4463 (CA) P. 30

PARAS A – F, the Court held thus,

“It is now firmly settled that rules of Court

are not mere rules, but they partake of the
nature of subsidiary legislations by virtue of
Section 18(1) of the Interpretation Act and

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 therefore have the force of law...that is why
rules of court must be obeyed...this is
because it is also settled that when there is
non-compliance with the rules of court, the
court should not remain passive or helpless.
There must be sanction; otherwise, the
purpose of enacting the rules will be
defeated...in other words, rules of court are
not only meant to be obeyed, they are also
binding on all the parties before the court.”

Without wasting further time, the said motion filed on the 19th day of May,
2020 by learned counsel to the 1st respondent is hereby struck out. It
follows therefore that the counter affidavit filed by the learned counsel to
the applicants is also struck out.

I now come to the motion filed on the 17th day of May, 2020 praying this
Honourable Court for the following;

1. An Order of this Honourable Court setting aside the purported local

government and state congresses organized and conducted by the
defendants/respondents on the 7th and 14th of March, 2020
respectively.
2. And for such further order or orders(s) as this Honourable Court may
deem fit to make in the circumstances of this case.

Of all the arguments of learned counsel to the 1st defendant, what caught
this Court’s attention is the issue of amendment. According to him, the
applicants, counsel ought to have amended his processes to reflect the
present parties before court. On the other hand, learned counsel to the
applicants stated that an amendment would have been necessary only
when there is a restructuring of the parties and not when a party is struck
out. Unfortunately, I beg to differ. This suit was instituted with three
claimants and along the line, one of the claimants withdrew leaving the
other two who are the current applicants in this application. This motion
filed by the applicants has two applicants, to wit:-
1. ERUAGA GALLANT C.
2. JIDE OBALOWOSHE ESQ

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On the face of the originating process before this court which is the writ of
summons, the claimants are;
1. ERUANGA GALLANT C.
2. VICTOR IDIAKHEOA ESQ.,
3. JIDE OBALOWOSHE ESQ.,

An originating process means any court process by which a suit is initiated.

See Order 1 Rule 2 (3) of the Edo State High Court Civil Procedure Rules,
2018. Like I stated earlier, during the course of proceedings, the said
VICTOR IDIAKHEOA ESQ. withdrew from this suit. The question that
weighed heavily on my mind is this, does VICTOR IDIAKHEOA ESQ.
withdrawal mean that the subsequent processes filed in this court would
reflect the new parties without leave of court to amend? The answer is
definitely in the negative. The fact that the originating processes still has
the old parties is quite fatal to this extant application. Also, the fact that
the applicants’ counsel suo motu amended without leave of court is also
fatal to this extant application.
Pleadings properly filed are only amended when leave to do so is duly
applied for and expressly granted by the court. It is not a matter for free
for all or a process by which a party with fine tricks on his side would
overreach the other. See ALFRED YAHAYA .V. FELIX CHUKWURA
(2001) LPELR – 6966 (CA) P. 19 PARAS A – B.
In the case of AYEBAKURO .V. TARIAH & ORS (2014) LPELR –
22675 (CA) P. 5 PARAS C – G, the Court held thus;
“...a party cannot unilaterally amend the
process before the court without leave of
court. As stated by Ogundare, JSC in
ENIGBOKAN .V. AMERICAN INT’L INSURANCE
CO (NIG) LTD (1994) 6 NWLR (PT 348) 1, an
amendment speaks from the original date the
process was filed. And because the law on the
principle of audi alteram partem, emphasizes

40
 that parties must always know forehand the
case they are to meet, there must be
certainty of every process before the court.
No party, for purpose of certainty, is
therefore allowed to unilaterally amend his
process without leave of court. In granting
amendment upon application, the court must
satisfy itself why the indulgence should be
granted...”

There will be no need to waste the further judicial time of this Honourable
Court. No party has the right to amend court processes without first
seeking and obtaining the leave of court. A Judge must at all times be in
control of the proceedings of his court. It will be abdicating in his
responsibility to allow counsel on one side to take over the court, bestride
the court like a colossus and dictate the pace. See ALHAJI AYINDE
AWURE & ANOR .V. ALHAJI ADISA ILEDU (YUSUF ADASA) (2007)
LPELR – 3719 (CA) P. 67 PARAS F –G.

To my mind, the unilateral amendment done by learned counsel to the

applicants is tantamount to taking over this court which I vehemently
frown at and would not condone. The consequence of the applicants’
counsel conduct is that this extant application is not properly before this
court.

The only reason which made this court proceed to hear this application and
deliver this ruling is because it has long been settled in a line of judicial
authorities that all pending motions no matter how frivolous they may
appear must be heard and a ruling delivered no matter how short. SEE
PRINCE EMEKA .V. LADY OKADIGBO (2012) LPELR – 9338 (SC).

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However, before I finally draw the curtains on this application, I would like
to implore members of political parties to try to resolve their differences
amicably without the necessity of involving the court at all times.
Conclusively, this application is hereby struck out for the reasons adduced
above.

_________________________________

HON. JUSTICE J. O. OKEAYA – INNEH

JUDGE
th
28 May, 2020

COUNSEL:
Dele Uche Igbinedion with I. O Ukpai for the Applicants.
Chief F. O. Orbih SAN, FCIArb with A. S. Adesheila for the 1st respondent.
No counsel in court for the 2nd respondent.

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