ITUEN v. SPEAKER, AKWA IBOM STATE HOUSE OF ASSEMBLY & ORS (2021)

ITUEN v. SPEAKER, AKWA IBOM STATE HOUSE OF ASSEMBLY & ORS

(2021)LCN/14938(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, January 08, 2021

CA/C/474/2018

RATIO

PROCEDURE: NATURE OF COUNTER AFFIDAVIT IN THE ORIGINATING SUMMONS PROCEDURE

The above complaint of the Appellant cannot be countenanced because of the recognition in case law that the Counter Affidavit in the Originating Summons procedure is synonymous with Statement of Defence in pleadings under the Writ of Summons procedure. It follows logically that in originating summons procedure, the counter-claim has to be contained in the Counter Affidavit as Counter Claim is contained in Statement of Defence in Writ of Summons procedure.
In the case of GBAJABIAMILA v. CBN & ORS (2014) LPELR – 22756 (CA) pp. 36-37, the Court of Appeal, per Ikeyegh JCA laid the principle thus:
Affidavits in originating summons are considered to be pleadings. The claimant’s affidavit is taken as the Statement of Claim. While the Defendant’s counter affidavit is taken as statement of defence. See PORTS AND CARGO HANDLINGS SERVICES COMPANY LTD. & ORS v. MIGFO NIGERIA LTD. & ANOR (2012) 18 NWLR (Pt. 1333) 555 @ 609 per the judgment by Ariwoola, JSC, as follows “Surely, the deposition and averments in an affidavit in support of an originating summons are like the averments contained in the statement of claim or pleadings in support of a general writ of summons in an action commenced by such writ of summons.” Again, in the case of NNPC & ORS v. FAMFA OIL LTD. (2012) 17 NWLR (Pt. 1328) 148 @ 189 it was stated in the lead judgment by Rhodes-Vivour, JSC, inter alia that “When an originating process (as in this case) is an originating summons, the affidavits filed in support serve as the statement of claim, while the counter affidavits serve as statement of defence. The affidavits are the pleadings for the case.” (My emphasis).
See also UWAZURUONYE v. GOVERNOR OF IMO STATE & ORS. (2013) 8 NWLR (Pt. 1355) 28 @ 56.
Also, in FAJIMI v. (LASTMA) & ORS. (2014) LPELR – 22253 (CA) page 39, Ikyegh JCA said:
Where the case is not fought on pleadings but on affidavit evidence in an originating summons action, the Defendants counter-affidavit serves as his statement of defence in which he is expected to raise the defence of time-bar of the action based on the Public Officers (Protection) Act or Law, as the case may be. See NNPC & ANOR. V. FAMFA OIL LTD. (2012) 17 NWLR (Pt. 1328) 148 @ 189 per the lead judgement prepared by Rhodes-Vivour, JSC, thus – “when the originating process is an originating summons, the affidavit filed in support serve as the statement of claim, while the counter affidavit serve as statement of defence. The affidavits are the pleadings for the case”
In the case of FRIDAY & ORS. V. THE GOVERNOR OF ONDO STATE & ANOR. (2012) LPELR 7886 (CA) @ pages 53-54 Kekere-Ekun, JCA, emphasized that whether it is a procedure governed by pleadings or Counter Affidavit, what is important is for the Counter Claimant to sufficiently indicate an intention to rely on the same pleadings in support of his counter claim, those pleadings would satisfy the requirement of pleadings in support of his Counter Claim. Listen to the erudite jurist:
In the case of ADENIYI v. OROJA (supra), reliance was placed on the decision in the case of OKONKWO v. C.C.B (2003) FWLR (154) 457 @ 508 where it was held that “a counter claim is a cross action with its separate pleadings, judgment and costs.” The case of HASSAN v. REGD. TRUSTEES BAPTIST CONVENT (1993) 7 NWLR (308) 679 @ 690 was cited with approval. My understanding of these decisions is that where a Defendant files a counter claim, there must be pleadings upon which his case is founded, as it is those pleadings and the evidence led in respect thereof that the Court would consider in determining the merit or otherwise of his counter claim. Being a separate claim, if there are no pleadings to support it, it would certainly fail. It is often the case that the facts relied upon by the Defendant in defence of the main action are the same facts being relied upon in support of the counter claim. In such circumstances, as long as the counter claimant sufficiently indicates an intention to rely on the same pleadings in support of his counter claim, those pleadings would satisfy the requirement of pleadings in support of the counter claim. In the event that the main claim fails, the Court would not be precluded from considering the pleadings in the statement of defence (or counter affidavit in the case of a suit begun by originating summons) in determining the counter claim. PER MOJEED ADEKUNLE OWOADE, J.C.A.
ELECTION MATTERS: TRUE MEANING OF THE WORD “MERGER” IN SECTION 109(1)(G) OF THE CONSTITUTION

First, I entirely agree with the Respondents counsel that the true meaning of the word “merger” in the provision of Section 109(1)(g) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is to be found in the provision of Section 84 of the Electoral Act 2010 (as amended) which indeed has provided the meaning, requirements, processes and consequences of merger of political parties in the polity.
The intention of the lawmakers in using the word “merger” in the proviso to Section 109(1)(g) of the Constitution of the Federal Republic of Nigeria 1999 is manifest from the provision of Section 84 of the Electoral Act 2010 (as amended) which is sub-titled “Merger of Political Parties” of significance in the process of merger of political parties is the provision of Section 84(5) of the Electoral Act which says:
(5) “Where the request for the proposed merger is approved, the Commission shall forthwith withdraw and cancel the certificates of registration of all the political parties opting for the merger and substitute therefore, a single certificate of registration in the name of the party resulting from the merger.”
Indeed, therefore, the word “merger” is used in the proviso to Section 109(1)(g) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) in a legalistic rather than a grammatical sense and properly conveys the intention of lawmakers. It is equally obvious that if the legislature had intended to use the word “Coalition” rather than “merger” in the sub-section, it would not have hesitated to do so. PER MOJEED ADEKUNLE OWOADE, J.C.A.
EVIDENCE: ADMISSIBILITY OF NEWSPAPERS REPORT

In AGABI VS. INEC (2008) 14 NWLR (PT. 1108) holding 6, the Court held:
Newspapers reports are not generally admissible as evidence of the facts recorded therein. In this case, the uncertified newspaper publication attached as Exhibit by the Applicant was inadmissible by virtue of Section 116 of the Evidence Act. PER MOJEED ADEKUNLE OWOADE, J.C.A.
LEGISLATION: INTERPRETATION OF THE PROVISION OF SECTION 109(1)(G) OF THE CONSTITUTION

The case of ABEGUNDE VS. O. S. H. A. (supra) was decided by a full panel of the Supreme Court presided over by Mahmud Mohammed, C. J. N. and the lead judgment was read by Musa Dattijo Muhammad, JSC other Justices on the Panel include John Afolabi Fabiyi, Suleiman Galadima, Olabode Rhodes-Vivour, Clara Bata Ogunbiyi and Kudirat Motonmori Olatokunbo Kekere – Ekun, JJSC.

All, the seven Justices explained that the provision of Section 68(1)(g) now 109(1)(g) of the Constitution is Punitive. That the mischief, it is meant to address is the previously rampant practice of “carpet crossing” where a person elected to Parliament on the platform of a Political Party, for financial consideration or otherwise, switches allegiance midterm, discords the party that sponsored him and joins another political party before the expiration of the lifespan of the parliament for which he was elected.
However, that under the proviso to the Section, if the membership of the new political party occurred because there was division in the political party which sponsored him and as a result he joined the new political party he does not lose his seat. This is because, a split or division could arise without any fault of the members of a political party resulting in a member rightly or wrongly, finding himself in a minority group which may not be big enough, or strong enough to satisfy the recognition, as a separate political party of the electoral body. For such a member not to be allowed to join another political party with his faction may be to place him in a position where his right to contest for political office will be lost.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

HON. IDONGESIT ITUEN APPELANT(S)

And

1. THE SPEAKER, AKWA IBOM STATE HOUSE OF ASSEMBLY 2. PEOPLES DEMOCRATIC PARTY (PDP) 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION(INEC) 4. COMMISSIONER OF POLICE, AKWA IBOM STATE RESPONDENT(S)

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court of Nigeria, Uyo, delivered by Honourable Justice F. O. Riman, on the 14th November, 2018.

The Appellant as Claimant in the Court below commenced this action against the Respondents Defendants by originating summons for the determination of the following questions:
1. Whether in view of Section 109(1)(G) Constitution of the Federal Republic of Nigeria 1999 (as amended), a member of a House of Assembly who was sponsored by a particular political party was not free to become a member of another political party where there was a division in the political party that sponsored him previously or a merger or alliance of two or more political parties with the one that sponsored him?
2. Whether in the instant case, where there was serious intractable and unresolved crisis resulting in production of two parallel Chapter Chairmen and Executives of Peoples Democratic Party at Itu Chapter, the particular Chapter that sponsored the Claimant in 2015 elections and ought to sponsor the Applicant for his aspiration in the 2019

elections, and view of the alliance of PDP with 37 strange political parties, resulting in CUPP, applicant was not justified to join another stable political party that could sponsor him for the forthcoming 2019 election?
3. Whether in view of the aspiration of the Claimant to contest Election for membership of the House of Assembly in the forth coming general elections and in view of Section 106(d) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), stipulating that for a person to be qualified for election as a member of a House of Assembly, he must be a member of a political party, and be sponsored by that political party, the Claimant was not entitled to be prudent in mitigating his losses by joining another Political Party of his choice to actualise his ambition.
4. Whether in the circumstances of this case, the 1st and 2nd Respondents are justified in threatening and plotting to declare the Itu State Constituency seat ably occupied by Claimant Vacant?
5. In view of the plan, plots and clandestine consultations to effect the declaration of vacancy of the seat occupied by Claimant, the constitutional right of the

applicant as a member of Akwa Ibom State House of Assembly for a four year tenure in office, as guaranteed by Section 105 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is not being threatened, to invoke the protective powers of the Honourable Court?
6. Whether the circumstance of this case is not deserving of this Honourable Court invoking its coercive and prohibitive powers under Section 14 of the Federal High Court Act to restrain the Respondents from carrying out its unconstitutional, vindictive and repressive actions against the Applicant and the people of his constituency.

The Appellant Claimant sought the following reliefs:
1. A DECLARATION that in view of Section 109(1)(g) Constitution of the Federal Republic of Nigeria, 1999 (as amended), a member of a House of Assembly who was sponsored by a particular party was free to become a member of another political party where there was a division in the political party that sponsored him previously or a merger or alliance of two or more political parties with the one that sponsored him?
2. A DECLARATION that in the instant case, where there was serious

intractable and unresolved crisis resulting in production of two parallel Chapter Chairmen and Executives of Peoples Democratic Party at Itu Chapter, the particular Chapter that sponsored the Claimant in 2015 elections, and ought to sponsor the Applicant for his aspiration in the 2019 elections, and in view of the alliance of PDP with 37 strange political parties, resulting in CUPP, applicant was justified to join another stable political party that could sponsor him for the forthcoming 2019 election?
3. A DECLARATION that in view of the aspiration of the Claimant to contest election for House of Assembly membership, and the provision of Section 106(d) of the Constitution of the Federal Republic of Nigeria 1999, which stipulates that an aspirant for an elective position must be a member of a Political Party, the Claimant was entitled to be prudent and to join another Political Party of his choice to actualise his political ambition.
4. A DECLARATION that in the circumstances of this case, the 1st – 3rd Defendants are not justified in their planned intention of declaring the Itu State Constituency seat occupied by Claimant vacant in view of the

alliance with other political parties and the intractable crisis in the 2nd Defendant Chapter of Applicant’s Constituency.
5. A DECLARATION that any declaration of the Itu State Constituency seat occupied by the Claimant vacant, constitutes a violation of the constitutional right of the Claimant as a member of the Akwa Ibom State House of Assembly for a four year tenure in office as guaranteed by Section 105(1) of the Constitution of the Federal Republic of Nigeria, 1999 and is deserving of the invocation of the protective powers of this Honourable Court in Section 14 of the Federal High Court Act.
6. An order of perpetual injunction restraining the Defendants, particularly the 1st Defendant from declaring the Itu State Constituency seat vacant, which is presently being capably occupied by the Claimant.
7. An order restraining the 3rd and 4th Defendants from seeking to enforce any order of the 1st Defendant declaring the Itu State Constituency seat vacant and from preventing the Claimant access into his office and performance of his lawful duties at the Akwa Ibom State House of Assembly Complex, Uyo, during the pendency of the substantive suit or before the determination of the substantive suit.

The originating processes were served on the Respondents. The 1st and 2nd Respondents filed counter affidavits in response to the affidavit in support of the originating summons (pages 97-115 and 122-124 of the record respectively).

In addition to the counter affidavit, the 1st Respondent filed a counter claim in paragraphs 26 and 27 of his Counter Affidavit/Counter Claim as follows:
26. Whereof it is hereby counter claimed as follows:
(a) A declaration that having defected from the Peoples’ Democratic Party to the All Progressives Congress before the expiration of the tenure of four years for which he was elected to serve, Hon. Idongesit Ituen has lost his seat in the Akwa Ibom State House of Assembly.
(b) An order of Court directing Hon. Idongesit Ituen to vacate the Itu State Constituency seat in the Akwa Ibom State House of Assembly with immediate effect.
(c) An order of Court restraining the Speaker of the Akwa Ibom State House of Assembly or any other person acting on his behalf (including the staff of the House of Assembly) from further recognising Hon.

Idongesit Ituen as a member of the Akwa Ibom State House of Assembly.
(d) An order of Court directing the Independent National Electoral Commission (INEC) to immediately conduct a bye-election to fill the vacant seat of Itu State Constituency at the Akwa Ibom State House of Assembly.
27. That I make this deposition (counter affidavit and counter claim) in good faith, believing its content to be true and correct and in accordance with the provision of the Oaths Act.

On being served with the processes of the 1st and 2nd Respondents, the Appellant claimant filed a further affidavit in support of the originating summons and reply on points of law (pages 156 to 185 of the Record). The Appellant claimant did not file any counter affidavit in response to the counter claim of the 1st Respondent.

The Appellant was a member of the 2nd Respondent and was sponsored by the 2nd Respondent (Peoples Democratic Party) to the Akwa Ibom State House of Assembly to represent Itu State Constituency in the 2015 General Election.

Sometime in August, 2018, (while the four year term was yet to expire), the Appellant voluntarily defected from the PDP (the political party that sponsored him to the House of Assembly) and joined the All Progressives Congress (the APC).

The Appellant in a pre-emptive step approached the Federal High Court sitting in Uyo with the originating summons in this suit and pleaded that there was a merger between the PDP and 38 other political parties, under the name of “Coalition of United Political Parties” (CUUP) hence, his decision to quit the party and join another political party; the APC. He also pleaded that there was division in the Itu Local Government Chapter of the PDP, for which reason his defection should be deemed justified in law.

The Respondents on the other hand urged the Court to give effect to the provision of Section 109(1)(g) of the Constitution of the Federal Republic of Nigeria, 1999 (CFRN) (as amended), the Appellant having defected before the expiration of the term for which he was elected, the Appellant had lost his seat in the Akwa Ibom State House of Assembly.

On 14/11/2018, the learned trial Judge delivered his judgment whereby he dismissed the Claimant’s Applicant’s claims and granted the counter claim of the 1st Defendant Respondent.

Dissatisfied with the said judgment, the Appellant filed a Notice of Appeal containing three grounds of appeal in this Court on 14/11/2018.

The relevant briefs of argument for the appeal are as follows:
(1) Appellant’s Brief of Argument filed on 7/1/2019. It is settled by Anthony Ekpe Asuquo, Esq.
(2) 1st Respondent’s Brief of Argument filed on 25/6/2019 but deemed filed on 12/3/2020. It is settled by Ekemini Udim, Esq.
(3) 2nd Respondent’s Brief of Argument filed on 21/3/2019 but deemed filed on 12/3/2020. It is settled by G. A. Umoh, Esq.

Learned counsel for the Appellant nominated two (2) issues for the determination of the appeal. They are:
(i) Whether trial Court was not wrong to have relied and based its judgment on both the purported counter claim that was imbedded in the middle of an affidavit, as well as countenancing the defective counter affidavit that contained extraneous matters like purported counter claim, arguments, conclusions and several prayers, contrary to provisions of Section 115(1) of Evidence Act, 2011?
(ii) Whether trial Court was not wrong to have held that

Appellant was not entitled to the benefit of the proviso to Section 109(1)(g) of the 1999 Constitution, upon his defection from 2nd Respondent to the All Progressives Congress as a result of the merger, coalition or alliance of the 2nd Respondent with 37 other political parties?

Learned counsel for the 1st Respondent similarly nominated two (2) issues for the determination of the appeal. They are:
(i) Whether the learned trial Judge was in error to have placed reliance on Section 109(1)(g) of the 1999 Constitution and the Supreme Court’s cases on the subject matter, namely, the case of FEDECO v. GONI and the case of HON. ABEGUNDE IFEDAYO v. ONDO STATE HOUSE OF ASSEMBLY, in reaching the conclusion that the Appellant had lost his seat in the Akwa Ibom State House of Assembly following his defection from the Peoples’ Democratic Party to the All Progressives Congress before the expiration of the four year tenure for which he was sponsored and elected?
(ii) Whether the learned trial Judge was not right when he countenanced the counter claim raised in the counter affidavit of the 1st Respondent?

Learned counsel for the 2nd Respondent also formulated the following two issues for the determination of the appeal,
(i) Whether the coalition of the 2nd Respondent with 37 other political parties is within the contemplation of merger of political parties to entitle the Appellant to take benefit of the proviso of Section 109(1)(g) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)? (Grounds 1).
(ii) Whether the learned trial Judge was not right when he countenanced the counter claim raised in the counter affidavit of the 1st Respondent? (Ground 2).

In this appeal, the submissions of the Appellant would be considered on one side of the scale of justice while the submissions of the 1st and the 2nd Respondents would be taken together as the submissions of the “Respondents” on the other side of the scale of justice. This is for reason of common interest between the two sets of Respondents and also for the convenience.

On issue No. 1, learned counsel for the Appellant submitted that a counter claim is a separate and independent claim. A counter claim just like a statement of claim is to be presented before the Court in the form of pleadings and

supported by a separate set of evidence in the form of deposition or averments in an affidavit. That there is no procedure in practice where a counter claim is permitted to be raised in the middle of a counter affidavit. That it was clearly an abuse of Court process and the trial Court ought to have rejected the entire document outright. But that the trial Court relied on same to purportedly grant judgment in favour of the Respondents.

The above reliance on the strange process and procedure, said counsel, despite the strident objection of the Appellant in his reply on points of law constituted abuse of Court process which consequence is setting aside.

On abuse of Court process, learned counsel for the Appellant referred to the cases of PDP v. UMEH (NO. 1) (2017) ALL FWLR (Pt. 888) 266 @ 287-288; SARAKI v. KOTOYE (1992) 9 NWLR (Pt. 264) 156; ATTORNEY GENERAL ANAMBRA STATE v. UBA (2005) NWLR (Pt. 947) 44; UNION BANK OF NIGERIA LTD. v. FAJEBE FOODS AND POULTRY FARMS & ANOR. (1994) 5 NWLR (Pt. 344) 325 @ 345-346.

Learned counsel for the Appellant submitted that by raising the purported counter claim in a counter affidavit, 1st Respondent

rendered the whole counter affidavit defective, incompetent and unreliable by virtue of Section 115(2) of the Evidence Act, 2011.

He submitted that all the reliefs or prayers of the 1st Respondent were contained in the purported counter affidavit. That the trial Court was enjoined to either strike out the whole counter affidavit or to have struck out all the offending paragraphs of the said counter affidavit.

He urged us to strike out all the offending paragraphs of the counter affidavit and then to find that there was no valid or competent counter claim upon which the judgment of the trial Court could be sustained.

He submitted that the counter claim being a separate and independent action ought to have been competently commenced. He referred to the cases of DAVID SABO KENTE v. DARIUS DICKSON ISHAKU (2017) LPELR 42077 (SC) and IKPEAZU v. EKEAGBARA (2016) LPELR 40847 (CA).
He urged us to resolve issue No. 1 in favour of the Appellant.

The two sets of Respondents in this appeal separately attended to Appellant’s issue No. 1 in their treatment of their own issue No. 2. They reminded us of the nature of originating summons procedure

as a means of commencement of action and that Affidavits serve the purpose of pleadings in the instant matter; whereof supporting affidavit serves the purpose of Statement of Claim and the Counter Affidavit serves the purpose of Statement of Defence.

The Respondents submitted that it is of no moment for the Appellant to suggest the filing of separate pleadings for Counter Claim which is unknown to law where a suit is commenced by way of originating summons.

On this, the Respondents referred to the cases of GBAJABIAMILA v. CBN & ORS. (2014) LPELR – 22756 (CA); PORTS AND CARGO HANDLINGS SERVICES COMPANY LTD & ORS v. MIGFO NIGERIA LTD. & ANOR. (2012) 18 NWLR (Pt. 1333) 55 @ 60; FAJIMI v. LASTMA & ORS. (2014) LPELR – 22253 (CA); N.N.P.C & ANOR. v. FAMFA OIL LTD. (2012) 17 NWLR (Pt. 1328) 148 @ 189; FRIDAY & ORS. V. THE GOVERNOR OF ONDO STATE & ANOR. (2012) LPELR – 7886 (CA) and submitted that in a suit commenced by way of originating summons as in the instant case, the counter affidavit serves the purpose of a Statement of Defence.

The Respondents concluded that the learned trial Judge was right when he countenanced the counter claim raised in the counter affidavit of the 1st Respondent.

The grouse of the Appellant in his issue No. 1 is that the counter claim of the 1st Respondent is contained in and or embedded in his counter affidavit. This, according to the Appellant, constitutes abuse of Court process.
The above complaint of the Appellant cannot be countenanced because of the recognition in case law that the Counter Affidavit in the Originating Summons procedure is synonymous with Statement of Defence in pleadings under the Writ of Summons procedure. It follows logically that in originating summons procedure, the counter-claim has to be contained in the Counter Affidavit as Counter Claim is contained in Statement of Defence in Writ of Summons procedure.
In the case of GBAJABIAMILA v. CBN & ORS (2014) LPELR – 22756 (CA) pp. 36-37, the Court of Appeal, per Ikeyegh JCA laid the principle thus:
Affidavits in originating summons are considered to be pleadings. The claimant’s affidavit is taken as the Statement of Claim. While the Defendant’s counter affidavit is taken as statement of defence. See

PORTS AND CARGO HANDLINGS SERVICES COMPANY LTD. & ORS v. MIGFO NIGERIA LTD. & ANOR (2012) 18 NWLR (Pt. 1333) 555 @ 609 per the judgment by Ariwoola, JSC, as follows “Surely, the deposition and averments in an affidavit in support of an originating summons are like the averments contained in the statement of claim or pleadings in support of a general writ of summons in an action commenced by such writ of summons.” Again, in the case of NNPC & ORS v. FAMFA OIL LTD. (2012) 17 NWLR (Pt. 1328) 148 @ 189 it was stated in the lead judgment by Rhodes-Vivour, JSC, inter alia that “When an originating process (as in this case) is an originating summons, the affidavits filed in support serve as the statement of claim, while the counter affidavits serve as statement of defence. The affidavits are the pleadings for the case.” (My emphasis).
See also UWAZURUONYE v. GOVERNOR OF IMO STATE & ORS. (2013) 8 NWLR (Pt. 1355) 28 @ 56.
Also, in FAJIMI v. (LASTMA) & ORS. (2014) LPELR – 22253 (CA) page 39, Ikyegh JCA said:
Where the case is not fought on pleadings but on affidavit evidence in an originating summons action, the Defendants

counter-affidavit serves as his statement of defence in which he is expected to raise the defence of time-bar of the action based on the Public Officers (Protection) Act or Law, as the case may be. See NNPC & ANOR. V. FAMFA OIL LTD. (2012) 17 NWLR (Pt. 1328) 148 @ 189 per the lead judgement prepared by Rhodes-Vivour, JSC, thus – “when the originating process is an originating summons, the affidavit filed in support serve as the statement of claim, while the counter affidavit serve as statement of defence. The affidavits are the pleadings for the case”
In the case of FRIDAY & ORS. V. THE GOVERNOR OF ONDO STATE & ANOR. (2012) LPELR 7886 (CA) @ pages 53-54 Kekere-Ekun, JCA, emphasized that whether it is a procedure governed by pleadings or Counter Affidavit, what is important is for the Counter Claimant to sufficiently indicate an intention to rely on the same pleadings in support of his counter claim, those pleadings would satisfy the requirement of pleadings in support of his Counter Claim. Listen to the erudite jurist:
In the case of ADENIYI v. OROJA (supra), reliance was placed on the decision in the case of OKONKWO v.

C.C.B

(2003) FWLR (154) 457 @ 508 where it was held that “a counter claim is a cross action with its separate pleadings, judgment and costs.” The case of HASSAN v. REGD. TRUSTEES BAPTIST CONVENT (1993) 7 NWLR (308) 679 @ 690 was cited with approval. My understanding of these decisions is that where a Defendant files a counter claim, there must be pleadings upon which his case is founded, as it is those pleadings and the evidence led in respect thereof that the Court would consider in determining the merit or otherwise of his counter claim. Being a separate claim, if there are no pleadings to support it, it would certainly fail. It is often the case that the facts relied upon by the Defendant in defence of the main action are the same facts being relied upon in support of the counter claim. In such circumstances, as long as the counter claimant sufficiently indicates an intention to rely on the same pleadings in support of his counter claim, those pleadings would satisfy the requirement of pleadings in support of the counter claim. In the event that the main claim fails, the Court would not be precluded from considering the pleadings in the

statement of defence (or counter affidavit in the case of a suit begun by originating summons) in determining the counter claim.
In the instant case, the counter affidavit of the 1st Respondent in opposition to the Appellant as contained on page 122 of the Record of Appeal is titled “Counter Affidavit/Counter Claim”. At page 124 of the same Record of Appeal and in the same process, there is a sub-title “Counter Claim” containing fresh numbering of depositions from No. 1 on page 124 to No. 25 on page 127 of the Record.”
Paragraph 26(a) to (d) specifically counter claimed and the process/document ended up in paragraph 27 to say:
27. That I make this deposition (Counter Affidavit and Counter Claim) in good faith, believing its contents to be true and correct and in accordance with the provision of the Oaths Act.
In the above circumstance, I do agree with the learned counsel to the Respondents and in the words of Kekere-Ekun, JCA (as he then was) in the case of FRIDAY & ORS. V. THE GOVERNOR OF ONDO STATE & ANOR. (supra) that:
In such circumstances, as long as the Counter Claimant sufficiently indicates

an intention to rely on the same pleadings in support of his counterclaim, those pleadings would satisfy the requirement of pleadings in support of the counter-claim. In the event that the main claim fails, the Court would not be precluded from considering the pleadings in the Statement of Defence (or counter affidavit in the case of a suit begun by originating summons in determining the counter claim).
Issue No. 1 is resolved against the Appellant.

On Issue No. 2, learned counsel for the Appellant submitted that at page 29 paragraph 7 of the Record, Appellant had given as his major reason for leaving 2nd Respondent to join the All Progressives Congress (APC) as being the fact of its merger, alliance or coalition with 37 other political parties of which he did not know if the primary guidelines from such a union will favour his second term bid.

He submitted that the above reason given by the Appellant was legally sufficient to justify his defection to another party and still to retain his seat at the Akwa Ibom State House of Assembly.

After referring to the provision of Section 109(1)(g) of the 1999 Constitution, Appellant’s counsel submitted that in granting judgment to Respondents, the trial Court at pages 208A and 209 relied on the cases of IFEDAYO ABEGUNDE v. ONDO STATE HOUSE OF ASSEMBLY (2015) 8 NWLR (Pt. 1461) 314 and FEDECO v. GONI (1983) 2 SCNLR 227. However, that the facts in the two cases were not similar with the present case and were clearly distinguishable. That whereas the earlier cases of ABEGUNDE AND GONI (supra) dealt with issue of division in a political party simpliciter, without any issue or pronouncement on merger, the present case dealt with both divisions in a political party and also with issue of merger, alliance or coalition of a political party with other parties which never arose in ABEGUNDE nor GONI’s case.

He submitted further that the alliance, merger or coalition of the 2nd Respondent, PDP in the instant case was at the National level of the party and not at the State level as was the case of division in ABEGUNDE’s case (supra).

He submitted that the vital question in this appeal is not the issue of division in PDP, but rather whether the PDP at the National level entered into, alliance, coalition or merger with other parties at all at the time of claimant’s defection to another party in September, 2018.

He submitted that there is yet no known decisive superior authority or pronouncement that deals exclusively on the interpretation as regards alliance, coalition or merger, as intended by the Constitution and urged us to give a critical and exhaustive consideration and a decisive pronouncement on the twin proviso in Section 109(1)(g) of the 1999 Constitution.

Appellant’s counsel repeated his belief that there is no difference between the word merger, alliance or coalition. That they all have the same meaning particularly in the sense as used by the Constitution.

Learned counsel for the Appellant explored the meaning of the word “merger” in some dictionaries including Thesaurus online Dictionary Cambridge Online Dictionary and Blacks Law Dictionary 7th Edition and came to the conclusion that they are all define the word “merger” as “joining together or uniting for whatever purpose” more importantly, said counsel, the Court is enjoined not to be circumscribed by the technicality of dictionary meaning of words alone, but to give a cadastral and broader interpretation to accommodate the actual import and intendment of framers of the Constitution.

He referred to the case of INEC v. DPP (2015) LPELR 24900 CA and submitted that the mischief that the proviso to Section 109(1)(g) of the 1999 Constitution intended to cure was to ensure that members of the Legislature, especially those who intend to seek elective positions in an election, should not be tied down in their erstwhile political parties that were once strong, but had become weak or divided to the extent of seeking for mergers, alliances or coalitions with other parties to shove up its strength to contest elections.

Appellant’s counsel submitted that his above interpretation finds support in the reasoning or pronouncement of Musa Dattijo Mohammed, JSC, in the case of IFEDAYO ABEGUNDE v. ONDO STATE HOUSE OF ASSEMBLY (2015) 8 NWLR (Pt. 1461) 314 @ 348 where the learned jurist held thus:
A split or division could arise without any fault of the members of a political party resulting in a member rightly or wrongly finding himself in a minority group which may not be big enough, or strong enough to satisfy the

recognition, as a separate political party of the Federal Electoral Commission. For such a member not to be allowed to join another political party with his faction, may be to place him in a position where his right to contest for political office will be lost.

He submitted that the consequence of a party entering into merger, alliance or coalition with other political parties is the same as consequence of division that weakens a party. That, once there was evidence that a political party sought affiliations or unions to strengthen itself or shove up its strength by whatever name called, whether as merger, alliance, union or coalition with other political parties to enable it contest a general election as was done by the 2nd Respondent in July, 2018, with a record of 37 other political parties, the condition for activation of the proviso to Section 109(1)(g) crystallizes and the constitution immediately permits a serving member of a House of Assembly to walk away and join another political party of his choice.
He urged us to resolve issue No. 2 in favour of the Appellant.

The Respondents have approached issue No. 2 by furnishing arguments as against the Appellant’s position in three (3) important dimensions. The first is that the meaning of the word “merger” in Section 109 (1) (g) of the 1999 Constitution is to be found in the requirement and process of “merger” of Political Parties in Section 84 of the Electoral Act, 2010 (as amended).

In this respect, the Respondents referred specifically to the provision of Section 84 (5) of the Electoral Act, 2010 (as amended) which stipulates that:
5) Where the request for the proposed merger is approved, the Commission shall forthwith withdraw and cancel the Certificates of Registration of all the Political Parties opting for the merger and substitute therefore, a single Certificate of Registration in the name of the Party resulting from the merger.
Notwithstanding the provisions of Subsection (2) of this section no merger of Political Parties received by the Commission less than 90 days before any general election in the country shall be considered by the Commission.”

The Respondents emphasized that “merger” is an issue of law and that the intention of the legislature in using the word “merger” in Section 109 (1) (g) of the Constitution is made clearer in the provision of Section 84 of the Electoral Act which defines and explains the process, procedure and consequence of merger of political parties. They argued that the process of merger is clearly set down in the Electoral Act and does not even call for the Court to venture into further interpretation or investigation of the intention of the legislature for the use of the word “merger”.

They (Respondents) referred on this to the cases of A-G, LAGOS STATE VS. EKO HOTELS LTD. & ANOR. [2006] 9 SC 46; NWALI VS. EBSIEC & ORS. (2014) LPELR – 23682 (CA); FRIDAY & ORS. VS. THE GOVERNOR OF ONDO STATE & ANOR. (2012) LPELR – 7886 (CA); COTECNA INT’L LTD. VS. IVORY MERCHANT BANK LTD. (2006) LPELR – 896 (SC).

The Respondents submitted that the learned trial Judge was therefore right when he held inter alia at page 208 of the Records that:
“… Coalition contemplates an alliance to achieve a purpose while the parties don’t lose their respective identities and ideologies and in the case of CUUP misunderstood by the

claimant.
Merger contemplates extinction of the parties merging together. It is provided for in Section 84 of the Electoral Act, 2010 (as amended) …“

On another wicket, the Respondents counsel submitted that the Appellant has not proved the merger of the 2nd Respondent with 37 other political parties which according to the provision of the Constitution and the Electoral Act contemplate extinction of all the merging political parties to become one political party.

The Respondents reminded us of the trite position of the law that he who asserts must prove. They relied on the provision of Section 135 of the Evidence Act and the cases of GENEVA VS. AFRIBANK NIGERIA PLC (2013) LPELR – 20662 (SC); ELIAS VS. OMOBARE (1982) 5 SC 2; ELIAS VS. DISU [1962] 1 ALL NLR 214; WOLUCHEM VS. GUDI [1981] 5 SC 291; AGALA & ORS. VS. EGWERE & ORS. [2010] 5 SCM 22 at 37.

They (Respondents) submitted that having failed to prove the merger of the 2nd Respondent with 37 other political parties, the Appellant has failed to derive any benefit from the proviso to Section 109 (1)(g) of the 1999 Constitution (as amended) for defecting to another

political party at the currency of his term as a member representing Itu State Constituency in the Akwa Ibom State House of Assembly.

Thirdly, the Respondents more especially through the 1st Respondent further justified the decision of the learned trial Judge by pointing out that, even though the decision of the full panel of the Supreme Court in the case of HON. IFEDAYO ABEGUNDE VS. ONDO STATE HOUSE OF ASSEMBLY (2015) 8 NWLR (pt. 1461) 314 essentially interpreted the provision of the then Section 68 (1) (g) of the then 1999 Constitution which is in pari materia to the provision of Section 109(1)(g) of the Constitution of the Federal Republic of Nigeria 1999 (CFRN) as amended by considering the legal implication of defection from one political party to another before the expiration of the tenure of a member of parliament specifically within the context of “division in the member” previous political party; that the Supreme Court emphasized the magnitude of such “division” to mean a crisis which affected the national structure of the party.

In other words the Respondents are saying that even a proper or proved “merger” under the provision of Section 109(1)(g) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) must be such as would affect the national structure of the party.

forthwith withdraw and cancel the certificates of registration of all the political parties opting for the merger and substitute therefore, a single certificate of registration in the name of the party resulting from the merger.”
Indeed, therefore, the word “merger” is used in the proviso to Section 109(1)(g) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) in a legalistic rather than a grammatical sense and properly conveys the intention of lawmakers. It is equally obvious that if the legislature had intended to use the word “Coalition” rather than “merger” in the sub-section, it would not have hesitated to do so.
In the instant case, the learned trial Judge was right to have held at page 208A of the Record of Appeal that:
“The Claimant has also sought to take refuge on the proviso claiming that Coalition of United Political Parties (CUUP) signifies merger.
Surprisingly, the Claimant seems not to understand the difference between coalition of political parties and merger. According to Cambridge Dictionary online, Coalition is “the joining together of different

political parties or groups for a particular purpose, usually for a limited time” Whereas the same Cambridge Dictionary online defines “merger” as “an occasion when two or more companies join together to make one large company.” Coalition contemplates an alliance to achieve a purpose while the parties don’t lose their respective identities and ideologies and in the case CUUP misunderstood by the Claimant.
Merger contemplates extinction of the parties merging together. It is provided for in Section 84 of the Electoral Act, 2010 (as amended).”
Furthermore, the Respondents to this appeal were also right to say that the Appellant failed to prove any form of merger between his previous political party and 37 other political parties as alleged by the Appellant.
The relevant paragraphs in the depositions/averments of the Appellant are paragraph 7 of the Supporting Affidavit and paragraphs 4 and 5 of the Appellant’s Further Affidavit in Support of originating Summons.
“7. That moreover the PDP at the National level announced recently that it was going into alliance or merger with another 37

political parties with the new name of the mega party as Coalition of United Political Parties (CUUP), of which there was no referendum to seek the consent of members of the People Democratic Party of which I do not know what adverse party guidelines it will later come out with.”
PARAGRAPHS 4 AND 5
4. That at paragraph 7 Claimant said affidavit, he had averred that the People Democratic Party at the National level entered into alliance or merger with 37 other political parties to form a mega party known as COALITION OF UNITED POLITICAL PARTIES (CUUP) without referendum to seek consent of the members and of which alliance he did not know what adverse party guidelines it would later come out with.
5. That contrary to Defendants averments, the signing of agreement or memorandum of understanding for the alliance between the PDP with over 37 other political parties for the coalition was a national news item that was globally captured and reported by many National Television Networks like NTA, Channels, AIT, and National Newspapers like This Day, …

By the above depositions in the Appellant’s Supporting Affidavit and Further Affidavit, it would be seen that the Appellant was quite far from proving coalition of political parties talk less of “merger” as contemplated under Section 84 of the Electoral Act, 2010 (as amended).
In this respect, the learned trial Judge observed rightly at page 208 of the Record of Appeal that:
In the instant case, the Plaintiff rely on the National News item that was globally captured and reported by many National Television Networks and National Newspaper and Online Media on the signing of agreement for the alliance between PDP with over 37 other political parties for the coalition.
In AGABI VS. INEC (2008) 14 NWLR (PT. 1108) holding 6, the Court held:
Newspapers reports are not generally admissible as evidence of the facts recorded therein. In this case, the uncertified newspaper publication attached as Exhibit by the Applicant was inadmissible by virtue of Section 116 of the Evidence Act.
Finally, it is pertinent in this appeal to revisit the issue of the reliance of the trial Court on the decision of the Supreme Court in the case of Hon. IFEDAYO ABEGUNDE VS. ONDO STATE HOUSE OF ASSEMBLY (2015) 8 NWLR (pt. 1461) 314 in reaching its decision.

The first justification by the trial Court to rely on the decision in Abegunde’s case (supra) is the allegation by the Appellant himself amongst others that there was a division in his Itu Chapter of his previous political party that is the PDP. The second justification by the trial Court in relying on the Abegunde’s case is the fact that the full panel of the Supreme Court in the Abegunde’s case (supra) took the opportunity of the case to pronounce on the philosophy, the rationale for the introduction of the provision of Section 68(1)(g) of the then Constitution which became Section 109(1)(g) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
The case of ABEGUNDE VS. O. S. H. A. (supra) was decided by a full panel of the Supreme Court presided over by Mahmud Mohammed, C. J. N. and the lead judgment was read by Musa Dattijo Muhammad, JSC other Justices on the Panel include John Afolabi Fabiyi, Suleiman Galadima, Olabode Rhodes-Vivour, Clara Bata Ogunbiyi and Kudirat Motonmori Olatokunbo Kekere – Ekun, JJSC.

All the seven Justices in the case agreed that the division envisaged in the proviso to Section 68(1)(g) now Section 109(1)(g) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) must be one that affects the entire structure of the political party at the centre, that is the national leadership of the party.
In the case of ABEGUNDE VS. O. S. H. A. (supra) the Supreme Court also followed the cases of FEDECO VS. GONI (1983) 2 SCNLR 227; and A-G FED. VS. ABUBAKAR to say that for a party to come under the cover of the proviso to Section 68(1)(g) now Section 109(1)(g) CFRN 1999 (as amended) is not a matter of course but strictly on proof of evidence.
In the instant case, the learned trial Judge was right to have held that the crisis/division in the Appellant’s Itu Chapter of his previous political party, PDP, was not one that affects the entire structure of the political party at the centre and that the Appellant could not be availed of the proviso to Section 109(1)(g) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Issue No. 2 is resolved against the Appellant.

Having resolved the two (2) issues in this appeal against the Appellant, the appeal lacks merit and it is accordingly dismissed.
Parties to the appeal are to bear their respective costs.

HAMMA AKAWU BARKA, J.C.A.: My lord has graciously obliged me with a copy of the judgment just delivered.
All the issue nominated for resolution were brilliantly and decisively resolved to my satisfaction and I have nothing useful to add, and thereby adopt the reasoning and conclusion as mine. The consequence that the appeal is devoid of merit and it is hereby dismissed.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the opportunity of reading in draft the judgment just delivered by my learned brother, Mojeed A. Owoade, JCA.

My lord has dispassionately considered the two issues raised canvassed by the parties in reaching a decision that the appeal is moribund and should be dismissed.
I too dismiss the appeal. I abide by the consequential orders contained in the lead judgment.

Appearances:

ANTHONY EKPE ASUQUO, ESQ. For Appellant(s)

EKEMINI UDIM, ESQ. – for 1st Respondent
G. A. UMOH, ESQ. – for 2nd Respondent. For Respondent(s)