WHY THE RULE OF LAW, JUDICIAL HIERARCHY AND THE RIGHT OF APPEAL MUST PREVAIL
By Alex Ter Adum, PhD
I have carefully examined the reported judgment delivered by Justice Peter Odo Lifu of the Federal High Court, Abuja, on 5 November 2026, in Suit No. FHC/ABJ/CS/1819/2025, instituted by Nafiu Bala Gombe against the African Democratic Congress (ADC), INEC and others.
My considered legal opinion is that the judgment raises grave questions of judicial consistency, jurisdiction, the permissible limits of judicial intervention in political party affairs, fair hearing and, most importantly, the propriety of granting consequential reliefs capable of invalidating an entire political party’s electoral processes and extinguishing the candidacies of numerous individuals.
I am particularly concerned about the relationship between this judgment and the earlier decision of Justice Musa Liman of the same Federal High Court, delivered on 2 July 2026, in Suit No. FHC/ABJ/CS/1637/2025, instituted by Hon. Leke Abejide.
Both proceedings arose from substantially the same leadership controversy within the ADC and challenged the process through which Senator David Mark and Ogbeni Rauf Aregbesola emerged as National Chairman and National Secretary respectively.
The central legal question is whether the subsequent proceedings before Justice Lifu were competent to reopen issues already judicially considered by a court of coordinate jurisdiction and whether the sweeping consequential orders made against the party’s leadership and candidates were legally sustainable.
My objections are founded on the following principles of Nigerian constitutional and judicial jurisprudence.
- A COURT OF COORDINATE JURISDICTION IS NOT AN APPELLATE COURT OVER ITS COLLEAGUE
One of the most fundamental principles of our judicial system is that a judge of a court of coordinate jurisdiction cannot ordinarily sit on appeal over, review, vary or nullify the decision of another judge of the same court.
The Supreme Court settled this principle emphatically in Nigeria Intercontinental Merchant Bank Ltd. v. Union Bank of Nigeria Ltd. (2004) 12 NWLR (Pt. 888) 599.
In that case, the Supreme Court deprecated the practice of judges of equal jurisdiction making contradictory and inconsistent orders over the same subject matter.
Pats-Acholonu JSC emphasised that a judicial system in which judges of the same degree make conflicting orders over the same subject matter undermines certainty, discipline and the credibility of the administration of justice.
Ejiwunmi JSC further held that where a court is aware that another court of coordinate jurisdiction is already seized of a case involving substantially the same parties and subject matter, proceeding to entertain the subsequent action and make conflicting orders may constitute an abuse of judicial process.
The Supreme Court’s reasoning is particularly relevant to the ADC controversy.
Similarly, in Witt & Busch Ltd. v. Dale Power Systems Plc. (2007) 17 NWLR (Pt. 1062) 1 , the Supreme Court reaffirmed the limits of a court’s power to set aside or vary the decision of another court of coordinate jurisdiction.
The principle was further articulated in Cole v. Jibunoh & Ors. (2016) LPELR-40662(SC), where the Supreme Court held that a court of coordinate jurisdiction has no constitutional power to sit as an appellate court over another court of the same hierarchy.
The Court relied on Chief Gani Fawehinmi v. Attorney-General of Lagos State No. 1 (1989) 3 NWLR (Pt. 112) 707, emphasising that even where an earlier decision is alleged to be a nullity, the proper procedure for challenging it is by an application before the court that delivered it, where appropriate, or by appeal to the competent appellate court.
The implication is fundamental.
The Federal High Court is one court. Its judges are not appellate superiors of one another.
If Justice Liman had already finally determined an issue that was essential to the subsequent proceedings before Justice Lifu, the latter could not lawfully reopen and reverse that determination merely because a different claimant instituted another action.
The judicial process cannot become a revolving door through which litigants approach different judges of the same court until they obtain a decision favourable to their preferred outcome.
That would constitute an assault on judicial discipline and the doctrine of finality of litigation.
- THE DOCTRINE OF RES JUDICATA AND ISSUE ESTOPPEL
The Supreme Court has consistently protected the finality of judicial decisions through the doctrines of res judicata and issue estoppel.
In Cole v. Jibunoh (supra), the Supreme Court affirmed that where a court of competent jurisdiction has finally settled a matter in dispute between parties, neither party nor their privies may reopen the same issue under the guise of instituting a fresh action.
The governing principle is that litigation must have an end.
In K. Flow Farm Industries Ltd. v. University of Ibadan (1993) 4 NWLR (Pt. 290) 719, the Supreme Court also considered the binding effect of issues previously determined by a competent court.
The relevant question in the ADC controversy is whether the issues finally determined in the Liman proceedings are substantially the same as those subsequently presented before Justice Lifu.
It is important to acknowledge that the reported Liman judgment upheld preliminary objections concerning jurisdiction, locus standi and the justiciability of the dispute. It must therefore be distinguished from a substantive judgment expressly declaring the Mark-led leadership valid on the merits.
The precise legal effect of the Liman judgment must be established from its certified true copy, including its reasoning and operative orders.
Nevertheless, its prior adjudication remains relevant to determining whether the subsequent proceedings improperly reopened matters already judicially determined.
The fact that the claimants were different does not automatically defeat the argument. The court must examine whether the parties were identical or privies, whether their legal interests were substantially represented, whether the issues were identical and whether the earlier decision was final and delivered by a competent court.
The doctrine of res judicata is not established merely by pointing to two cases concerning the same political party. Its essential ingredients must be proved.
But neither should a subsequent litigant be permitted to circumvent the doctrine by simply changing the name of the claimant while seeking substantially the same judicial determination.
- THE LATER-IN-TIME RULE DOES NOT CONFER APPELLATE JURISDICTION
It is necessary to confront a principle that may be invoked in defence of the Lifu judgment.
In Ikeni v. Efamo & Ors. (2001) 10 NWLR (Pt. 720) 1, the Supreme Court, per Ayoola JSC, recognised the principle that where there are conflicting judgments, the later judgment may constitute res judicata.
The Court explained that where an intervening action has produced a subsequent judgment, the later adjudication may defeat reliance on an earlier judgment if the necessary requirements of estoppel are established.
This principle must not, however, be misconstrued as granting a subsequent judge unrestricted authority to overturn an earlier decision of a court of coordinate jurisdiction.
The later-in-time rule concerns the operation of conflicting judgments for purposes of res judicata. It does not create appellate jurisdiction where none exists.
Neither does it dispense with the requirements for establishing the identity of parties, issues, subject matter and the competence of the court.
Indeed, Ikeni v. Efamo (supra) must be read alongside Nigeria Intercontinental Merchant Bank v. Union Bank, Witt & Busch v. Dale Power Systems and Cole v. Jibunoh (supra).
These authorities address different but related questions: the effect of conflicting judgments on the one hand, and the constitutional limits on a coordinate court reviewing another court’s decision on the other.
Consequently, the Lifu judgment cannot be immunised from appellate scrutiny merely by invoking the fact that it was delivered later.
The chronology of judgments cannot substitute for jurisdiction, and a subsequent judgment cannot acquire appellate superiority merely by being the last pronouncement.
- THE QUESTION OF JURISDICTION AND THE LIMITS OF CONSEQUENTIAL RELIEFS
Another fundamental difficulty concerns the scope of the reliefs granted by Justice Lifu.
The action was instituted in 2025, whereas the ADC presidential primary and the emergence of its other candidates for the 2027 general elections occurred in 2026.
This chronology raises a serious question about the relationship between the original cause of action, the reliefs sought, subsequent events and the sweeping consequential orders reportedly granted.
Could the original pleadings, instituted before the conduct of the 2026 primaries, properly sustain orders invalidating nominations and electoral decisions that arose subsequently?
Were the subsequent events properly brought before the court through appropriate pleadings?
Were the affected candidates joined or otherwise afforded the opportunity to defend their individual legal interests?
Were the consequential orders within the scope of the reliefs sought and the issues properly submitted for determination?
These are not peripheral technicalities. They go to the competence of the proceedings and the constitutional validity of the orders made.
In Madukolu v. Nkemdilim (1962) 2 SCNLR 341, the Supreme Court established the classical conditions for the competence of a court to exercise jurisdiction.
A court is competent when:
- It is properly constituted as regards the number and qualification of its members.
- The subject matter of the action is within its jurisdiction, and there is no feature preventing the exercise of that jurisdiction.
- The action is initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.
A defect in jurisdiction is fundamental. It renders the proceedings a nullity, however brilliantly conducted.
Furthermore, Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999, as amended, guarantees the right to fair hearing.
The nullification of the nominations of numerous ADC candidates raises a substantial constitutional question where those individuals were not parties to the original proceedings or were not afforded a fair opportunity to defend their respective interests.
A court cannot casually extinguish the legal rights of persons who were not properly before it.
A consequential order must be genuinely consequential to the principal reliefs and the findings made by the court. It cannot be used to enlarge the original cause of action, create an independent substantive controversy or determine matters that were neither properly pleaded nor adjudicated upon.
The distinction is particularly important in the present controversy.
Even if a court finds a defect in the emergence of a political party’s leadership, it does not automatically follow that every subsequent decision, every primary election and every nomination made by that party is legally void without a proper examination of the relevant facts, applicable law, pleadings and rights of affected persons.
That is precisely where the description of the consequential orders as a legal non sequitur becomes relevant: the conclusion must logically and legally follow from the findings and reliefs properly before the court.
The appellate court must determine whether that essential legal connection exists.
- JUDICIAL ORDERS MUST BE OBEYED, BUT INEC MUST EXERCISE INSTITUTIONAL RESTRAINT PENDING APPEAL
Section 287(3) of the Constitution requires the decisions of the Federal High Court to be enforced throughout the Federation by all authorities and persons.
It is settled law that the mere filing of an appeal does not operate as an automatic stay of execution of the judgment appealed against.
However, that principle should not be interpreted as compelling INEC to act precipitately or mechanically implement every consequential order arising from a judgment whose legal foundation, jurisdictional competence and consistency with an earlier judgment of a court of coordinate jurisdiction are seriously contested.
In the peculiar circumstances of this case, judicial prudence, institutional neutrality and respect for the integrity of the electoral process demand that INEC exercise the utmost caution and restraint in implementing the consequential orders of Justice Lifu, pending the determination of any appeal that may be filed by the ADC and the consideration of any appropriate application for stay of execution.
INEC is not an appellate court, neither should it arrogate to itself the power to pronounce upon the validity or otherwise of the competing judicial decisions.
Nevertheless, as an independent constitutional electoral umpire, it has a responsibility to avoid taking precipitous administrative steps capable of creating irreversible consequences, prejudicing the rights of affected political actors and candidates, or rendering an appeal nugatory.
This is particularly important where the consequential orders affect not merely the internal leadership of a political party but also the nominations and electoral fortunes of numerous candidates who may not have been parties to the original proceedings.
Accordingly, INEC should exercise institutional restraint and seek appropriate legal clarification or directions from the competent court, rather than hastily implementing consequential orders whose validity is definitely going to be the very subject of a serious appellate challenge.
Where the law or an operative order requires immediate compliance, INEC cannot simply disregard it. The appropriate protection must be sought through an urgent application for stay or other necessary orders from the competent court.
This is not an invitation to disobey a subsisting court order. It is an appeal to judicial prudence, constitutional responsibility and institutional neutrality in circumstances where the consequences of premature implementation may be grave, far-reaching and potentially irreversible.
The rule of law is not served by administrative haste that may pre-empt the appellate process or render the constitutional right of appeal practically meaningless.
- THE RIGHT OF APPEAL MUST NOT BE RENDERED AN ILLUSION
The Constitution guarantees the right of access to the appellate process.
The ADC is entitled to challenge the Lifu judgment before the Court of Appeal, question the jurisdictional foundation of the decision, challenge the propriety of the consequential orders and invite the appellate court to resolve the conflict between the two judgments.
The appropriate legal steps should include:
- An appeal challenging the jurisdictional and substantive foundations of the Lifu judgment.
- An urgent application for stay of execution of the consequential orders.
- An application for appropriate preservatory orders, where necessary, to prevent irreversible prejudice to the party and its candidates.
- Placing the complete certified true copies of both the Liman and Lifu judgments, their originating processes, pleadings and enrolled orders before the Court of Appeal.
The appellate court should be invited to determine whether the earlier adjudication created any binding estoppel, whether the subsequent proceedings were an abuse of process, whether the court properly exercised its jurisdiction and whether the consequential orders were legally sustainable.
- CONCLUSION: ADC’S DEMOCRATIC MANDATE MUST BE DETERMINED BY LAW, NOT JUDICIAL CONTRADICTION
The Nigerian judiciary must remain an institution governed by judicial hierarchy, consistency, jurisdiction, fair hearing and discipline.
The fact that two different claimants approach two judges of the same Federal High Court over substantially the same political controversy should not become an avenue for obtaining contradictory judicial pronouncements or circumventing the established appellate process.
The Liman judgment of 2 July 2026 and the Lifu judgment of 5 November 2026 must be examined together, not in isolation.
Their pleadings, issues, reasoning and operative orders must be compared by the Court of Appeal.
If it is established that Justice Lifu reopened and contradicted issues finally determined by Justice Liman between the same parties or their privies, without jurisdictional justification, the subsequent decision would offend the settled principles in Nigeria Intercontinental Merchant Bank v. Union Bank, Witt & Busch v. Dale Power Systems and Cole v. Jibunoh (supra).
Equally, if the consequential nullification of nominations went beyond the reliefs properly sought, extended to matters not properly placed before the court or denied affected persons their constitutional right to fair hearing, those orders should not only be vulnerable to appellate intervention they be immmidiately stayed and ultimately quashed.
My position, therefore, is that the Lifu judgment raises substantial and serious grounds for reversal. Its validity cannot be established merely by the chronological fact that it was delivered after the Liman judgment.
The Court of Appeal must determine whether the proceedings before Justice Lifu were legally competent, whether the earlier adjudication created any binding estoppel, and whether the consequential orders were supported by the pleadings, jurisdiction and constitutional requirements.
Meanwhile, INEC should not mistake the absence of an automatic stay for an obligation to act with administrative haste. Its constitutional responsibility as an independent electoral umpire requires caution, neutrality and institutional restraint, particularly where premature implementation could inflict consequences that may prove difficult or impossible to reverse.
The ADC’s leadership dispute must be resolved in accordance with the Constitution, the applicable electoral laws and the established principles of judicial administration. The rights of its candidates must equally be determined on their individual legal merits and not extinguished through an automatic extension of orders made in a leadership dispute.
No judge of a court of coordinate jurisdiction is an appellate superior to another. No judicial order should be permitted to acquire legitimacy by circumventing the constitutional hierarchy of courts. And no political party should have its entire electoral existence extinguished through consequential orders that have not satisfied the requirements of jurisdiction, fair hearing and due process.
The rule of law demands obedience to lawful judicial orders, but it equally demands that judicial power itself must remain subject to the law. It also demands that the institutions charged with implementing judicial decisions exercise sound judgment and constitutional responsibility when confronted with genuinely contested and potentially irreversible consequences.
The Constitution does not contemplate judicial anarchy, nor does it permit administrative haste to become an instrument for pre-empting the appellate process.
ADC’s democratic mandate, the rights of its candidates and the integrity of the electoral process deserve nothing less than the full protection of the law.
Alex Ter Adum, PhD
Lawyer and Public Affairs Commentator
6 November 2026
