MRS. SUSAN OLAPEJU SINMISOLA OLLY V. HON. OLUKOLU GANIYU TUNJI & ORS (2012)

MRS. SUSAN OLAPEJU SINMISOLA OLLY V. HON. OLUKOLU GANIYU TUNJI & ORS

(2012)LCN/5323(CA)

In The Court of Appeal of Nigeria

On Thursday, the 26th day of April, 2012

CA/L/667/2011

RATIO

PROCEDURE: POSITION OF THE LAW ON CASES COMMENCED BY WAY OF ORIGINATING SUMMONS

It is the position of law that in cases commenced by way of originating summons, like cases commenced by writ of summons, the originating summons takes the place of the writ and the affidavit evidence in support take the place of oral evidence while exhibits take the place of documentary evidence. See Agbakoba v. INEC (2008) 18 NWLR Pt. 1119 Pg. 489 at Pg 549. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A

EVIDENCE: POSITION OF THE LAW TO SELF CONTRADICTORY EVIDENCE

ORDER: REQUIREMENT FOR A CLAIMANT TO SUCCEED IN SECURING A DECLARATORY ORDER

It is trite that for a Claimant to succeed in securing a declaratory order, he must prove his case with preponderance of evidence and on the balance of probabilities. To secure a declaration – that is a pronouncement of a factual state of affairs from the court, a Claimant must prove the existence of such facts before the court can pronounce them to be true. The onus of proof is on the Claimant/Plaintiff who cannot rely on the weakness of the case of the Defendant. See Monodu Olubodun & Ors V. Oba Adeyemi Lawal (2008) 6 SCNJ 269; Dumez Nig Ltd V. Peter Nwakhoba (2008) 12 SCNJ 768. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A

PROCEDURE: EFFECT OF SERVICE OF AN ORIGINATING PROCESS NOT ENDORSED

There is no doubt that where an originating process is to be endorsed as contended by the Appellant, but served without being so endorsed, the service is voidable and can be set aside at the instance of the Defendant served with the process and who has not waived her right. This is without prejudice to the competence of the suit as constituted. see Famfa Oil Ltd v. Attorney General of the Federation (2003) 18 NWLR (Pt.852) 453. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

JOHN IYANG OKORO Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

Between

MRS. SUSAN OLAPEJU SINMISOLA OLLY Appellant(s)

AND

1. HON. OLUKOLU GANIYU TUNJI
2. ACTION CONGRESS OF NIGERIA
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of Honourable Justice Stephen Jonah Adah of the Federal High Court delivered on 31st March 2011 wherein the court entered judgment in favour of the Plaintiff and granted all the reliefs sought.
The facts that led to this appeal are as follows:
The party primaries of the 2nd Defendant was conducted on 12th January 2011 to determine the candidate for Amuwo-Odofin Constituency of the Federal House of Representatives among other candidates. The name of the 1st Defendant was submitted by the party – Action Congress of Nigeria, to the 3rd Defendant – the Electoral body, while the Plaintiff claimed to have won the primaries by scoring a total of 61 votes. Dissatisfied and by an amended originating summons dated 7th March 2011, the Plaintiff prayed for the following reliefs:
”1. A declaration that the Plaintiff is the winner of the 2nd Defendant’s primary elections for Amuwo-Odofin Federal Constituency, Lagos State conducted on the 12th day of January 2011 to the Federal House of Representatives having scored the highest number of votes.
2. A declaration that the Plaintiff is the candidate of the 2nd Defendant in the April 2011 general elections for Amuwo-Odofin Federal constituency, Lagos state to the Federal House of Representatives.
3. A declaration that the 1st Defendant having lost the primary election for Amuwo-Odofin Federal Constituency, Lagos State to the Federal House of Representatives is not, and cannot be candidate of the 2nd Defendant in the April 2011 General Election.
4. Declaration that the 1st Defendant is not eligible and or qualified to contest the 2nd Defendant’s primary elections and or April General Elections for Amuwo-Odofin Federal Constituency, Lagos State to the Federal House of Representatives, being a person employed in the public service of Lagos State.
5. An order directing the 2nd and 3rd Defendant to recognize the Plaintiff as the candidate of the 2nd Defendant in the April 2011 General Elections for Amuwo-Odofin Federal Constituency, Lagos State.
6. An order of perpetual injunction restraining the 2nd and 3rd Defendants, their servants, privies, agents or whosoever from recognizing, holding out an dealing with or howsoever relating with the 1st Defendant as the candidate of the 2nd Defendant for the April 2011 General Elections for Amuwo- Odofin Federal Constituency, Lagos State to the Federal House of Representatives.
7. An order of perpetual injunction restraining the 1st Defendant from parading herself or howsoever holding out herself as the candidate of the 2nd Defendant in the April 2011 General Elections for Amuwo-Odofin Federal Constituency, Lagos State to the Federal House of Representatives.”
GROUND UPON WHICH THE ORIGINATING SUMMONS IS BROUGHT:
a) The Applicant is the winner of the primary election conducted on Wednesday the 12th of January, 2011 for the Amuwo-Odofin Federal Constituency securing 61 votes against the Defendant/Respondent who got 4 votes.
b) The name of the Applicant was illegally substituted for the 1st Defendant who secured the least votes.
c)The action of the Defendant/Respondent in substituting the name of the Applicant for the 1st Defendant and subsequently forwarding the 1st Defendant’s name to the 3rd Defendant as its candidate for Amuwo-Odofin Federal Constituency, contravenes the provisions of section 87 and other relevant sections of the Electoral Act, 2010 as amended, including the 1999 Constitution of the Federal Republic of Nigeria, as amended.
d) The 1st Defendant will only retire from public service Lagos state as a Principal of Lagos State Senior Model College, Kankon Badagry on 31st March, 2011.
The 1st Defendant filed a counter affidavit to the amended originating summons while the 2nd Defendant had initially filed a counter affidavit to the Plaintiffs earlier originating summons. Reply affidavit was filed to the various counter affidavits of the Defendants. Written addresses were filed by the parties in accordance with the rules of court. By the Notice of Preliminary Objection dated 17th March 2011, the 2nd Defendant challenged the jurisdiction of the lower court to entertain the suit on the ground that:
”The Plaintiffs action is incompetent for failure to commence by the due process of law.
The entire action is an abuse of court process.”
The 2nd Defendant filed a written address in support of the preliminary objection (see pages 429-436 of the record). In reaction, the Plaintiff filed a written address dated 21st March 2011.
On the directive of the lower court as enjoined by Order 29 Rule 1 of the Federal High Court (Civil Procedure) Rules 2009, the Notice of Preliminary Objection was argued together with the amended originating summons on the 23rd day of March 2011. The Plaintiff adopted and relied on his further and better affidavit, his written address dated 9th March 2011, reply affidavit and the written address dated 15th march 2011, in support of the amended originating summons dated 9th day of March 2011. The 1st Defendant and the 2nd Defendant adopted and relied on their counter affidavit and written address all dated 9th March 2011.
On the 31st March 2011, the lower court in its considered judgment dismissed the preliminary objection and granted all the prayers sought by the plaintiff as per his amended originating summons dated 9th March 2011.
The 1st Defendant has appealed to this court vide notice of appeal dated 20th June 2011. Briefs were filed by the parties and issues joined. The 1st Defendant at the lower court and now the Appellant filed amended brief dated and filed on 20th October 2011 and deemed filed on 6th December 2011. The Appellant filed reply brief on 23rd December 2011. The erstwhile Plaintiff now the 1st Respondent in this court filed the 1st Respondent’s brief dated 8th December 2011 on same day. Neither the 2nd nor 3rd Respondents filed any brief of argument. The Appellant submitted the following issues for determination:
”1. Whether from the weight of evidence before the court, the Plaintiff indeed established a case as to be entitled to judgment in his favour,
2. Whether Exhibit B and B1 of Plaintiff/1st Respondent reply affidavit are documents the court can rely upon to give judgment against the Appellant without occasioning a miscarriage of Justice and without deviating from fair hearing.
3. Whether, considering the totality of the facts of this case and provision of section 66 (1)(F) of the constitution of the Federal Republic of Nigeria, 1999 (as amended), the issue of the qualification of 1st Defendant for the primary election of the 2nd Defendant and or the general election into the Federal House of Representatives was not academic and speculative.
4. Whether from the totality of the facts of this case, the originating summons procedure was a proper and valid mode of commencing the action and if not whether same does not deprive the lower court of the competence to determine the action.
5. Whether failure of the Plaintiff to seek and obtain the leave of the lower court before service of the court’s process on 1st Defendant outside jurisdiction does not deprive the trial court of the jurisdiction to try the matter.”
The 1st Respondent submitted the following issues for determination:
”1. Whether the amended originating summons dated 9th March 2011 is competent, suitable for the commencement an determination of the issues in controversy between the parties (Distilled from ground 1, 2 and 3).
2. Whether the consideration of Exhibits B and B1 by the learned justice of the lower court tantamount to denial of fair hearing to the Appellant (Distilled from ground 4).
3. Whether the learned trial judge of the lower court erred in law when he held that:
”It is obviously clear that since the defendants’ did not put in the result declared by the Electoral Committee of the party at the said Election, there is nothing to block the belief of this court that Exhibit B, B1 to the reply affidavit is the authentic record of what transpired at the primary election on 12th January 2011. It is very clear that it is the Plaintiff and no other contestant that won the Primary conducted on 12th January 2011”.
(Distilled from ground 5).
4. Whether the learned justice of the lower court was right in law when his Lordship held that:
”The 1st Defendant therefore has not measured up with the time specification as to confer her with the qualification to contest the election.
That issue is very clear.” (Distilled from ground 6.)
5. Whether the lower court lacked the requisite jurisdiction to entertain and determine the suit without leave to issue and serve the originating summons out of jurisdiction. (Distilled from ground 7.)
At the hearing of this appeal both counsel agreed that the appeal turns on the sole question of fact which is whether or not the 1st Respondent or the Appellant won the primary election held by the 2nd Respondent on 12th January 2011. The arguments on this issue of fact are contained in issues 1 & 2 as argued by the Appellant’s counsel and the Respondents’ counsel issues 2 and 3 in that regard. Since parties are agreed on the scope of matters submitted for determination, I will ab initio limit the consideration of the issues to those relevant to determining who actually won the party primaries. As I said earlier, this would limit me in the first instance to Appellant’s issues 1 & 2 which I will consider together.
I will consider issues 1 and 2 as couched by learned Appellant’s counsel.
ISSUES ONE AND TWO
I will consider arguments of both counsel on issues 1 and 2. Learned Appellant’s counsel Mr. Bola Aidi submitted that since the 1st Respondent sought declaratory reliefs, he can only succeed on the strength of his own case and not the default of the other party but on strict proof of facts. He cited Abdullahi v. Military Administrator Kaduna State (2004) 5 NWLR (Pt.866) 232 at 252-253, Bello v. Eweka (1981) 1 SC 101 at 120-122; Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) 241 at 415 – 416.
Counsel argued that an examination of the originating summons, the affidavits and deposition in support and the Exhibits in proof of the case before the lower court would no doubt reveal that it is a case full of material contradictions and irreconcilable conflicts which is incapable of sustaining declaratory reliefs even if the Appellant herein choose not to file a counter affidavit.
Counsel stated that the affidavit in support of the declaratory reliefs sought is self contradictory since the annextures attached to it are inconsistent with it. He argued that when an affidavit is self contradictory it need not be controverted or challenged by the adverse party as such evidence is unstable and should be discredited by the court in any event. He cited Ekekeugbo v. Fibersima (1994) 3 NWLR Pt. 335 Pg.707 at 731; Balogun v. Shonibare (1997) 3 NWLR Pt. 493 Pg. 317 at 331. He argued that the court cannot pick and choose which contradictory evidence to believe. Counsel then listed the various contradictions in the case of the 1st Respondent. They are collated by me and set out below:
1. In paragraph 6 of the affidavit 1st Respondent said he contested with 6 other candidates while the records show there were only 6 candidates in all at the Primaries.
2. Paragraph 6 of the affidavit is in conflict with Exhibit C attached to it in that it declared that the Appellant came second at the primaries polling 15 votes while the deposition in paragraph 6 shows the Appellant scored 4 votes and came 5th.
3. The 1st Respondent’s averments also contradict Exhibit A which shows that one Oyewo scored 15 votes and came second.
4. The 1st Respondent by his deposition in paragraph 13 and 14 of the affidavit in support of amended originating summons, attached Exhibit D1-D6, which are copies of various petitions, sent on the instruction of the 1st Respondent by his solicitor, Lere Oyedepo & Co. By paragraph 2 and 3 of Exhibit D1, which is a letter dated 8th February 2011 (see page 61 of the record) and directed at the Chairman of INEC, the 1st Respondent’s statement through his lawyer again directly contradicts and conflicts with paragraph 6 of affidavit in support as well as Exhibit A, B and C, as Mrs. Olly was held out in paragraph 3 of Exhibit D1 to have won ”just two votes”.
5. Exhibit E-ELL contains the petition allegedly endorsed by the delegates, the evidence therein was that the 1st Respondent polled 71 votes as against his own assertion that he scored 61- votes.
6. Exhibit B1 prepared by INEC as an account of what transpired was dated 15th January 2010 almost a year ahead of the event.
Counsel submitted that the highlighted contradictions are not mere minor discrepancies in the figures but major irreconcilable facts which cannot give birth to declaratory reliefs in an election matter where facts and figures are sacrosanct. Counsel argued that the conflicts in the case of the 1st Respondent must be resolved by the party before any probative value can be given by the court to the pieces of evidence.
Counsel argued that there are no authentic results of the elections as newspaper reports cannot be a substitute for the actual authentic results.
The learned Appellant’s counsel argued that no credible evidence was placed before the court in proof of the claim that the 1st Respondent was the winner of the election because on a proper evaluation of the evidence the court could not have found the declarations sought proved.
Exhibit B was attached to the amended originating summons as the report of the 3rd Respondent’s officials who witnessed the election.
Counsel argued that it was mere speculation on the part of the trial court to assume that the ”I.K. Bawa Acting Director Legal” on the report was a Director of INEC as the name of INEC was not noticeable anywhere in the report.
Counsel also argued that the combined effect of depositions in paragraph 2 and 3 of the affidavit above is to the effect that the Plaintiff in the process of filing his amended originating summons on 9th March 2011, inadvertently left out the said Exhibits A1-F39 which Exhibits he now attached to his case through a reply affidavit. The simple understanding of the above statement would no doubt mean that the documents (Exhibits A1-F39) being sought to be attached to the reply affidavits had existed as at 9th day of March 2011 when the Plaintiff inadvertently left them out during filing.
Exhibit B and B1 upon which the court gave judgment to the Plaintiff reveal that the said documents were either not in existence or not in the same form as at the 9th day of March 2011, when Plaintiff alleged he inadvertently left them out.
Counsel further submitted that judgment as granted to the 1st Respondent in this matter was based on Exhibit B and B1 attached to 1st Respondent’s affidavit of 15th March 2011. [See affidavit at page 334 to 336 of the Record). An examination of the said 1st Respondent’s Reply Affidavit to the 1st and 2nd Appellant’s counter affidavit would however reveal that the said Exhibit B and B1 were smuggled into the case through a gross, fraudulent and most reprehensible misrepresentation of facts at a point when the appellant herein no longer had a right to reply thereby denying the Appellant fair hearing and occasioning gross miscarriage of justice against the Appellant.
He urged the court to examine the amended originating summons and the further and better affidavit of 9th March (page 300-306 of record) which would reveal that nowhere in the document was any reference made to Exhibit B1. Exhibit B1- was not pleaded in the further and better affidavit and could therefore not be a document inadvertently left out during filing, when in the first place the document is unknown to the affidavit of 9th March 2011.
The only document sought to be brought in by the amendment was form CF 001 in paragraph 3 of the motion for amendment of 2nd March 2011 which was attached as Exhibit F1 -F39. Thus, the introduction of a new Exhibit B through a reply when it was obvious that the Appellants would not be able to contend the facts contained there is prejudicial to the Appellant herein and clearly against justice. He then submitted that a reply is not an avenue to reargue a party’s case moreso one seeking to introduce fresh evidence, neither is it a repair kit for fixing an otherwise damaged case, which in this case had been damaged by the response of the 1st Appellant. He cited Nwaigwe v. FRN (2009) 16 NWLR (Pt. 1166) 169 at 198 paras F-H – Afiniola v. Fatodu (2009) 6 NWLR (Pt. 1136) 184 at page 196, paras C-G.
The learned counsel to the 1st Respondent argued that the 1st Respondent in proof of his averment before the lower court clearly set out in paragraph 6 of his further and better affidavit dated 9th March 2011, t he names and the number of votes secured by all the contestants in the primary election of the 2nd Respondent conducted on the 12th day of January 2011. He referred to page 304 of the record. The 1st Respondent attached Exhibits B, B1 A1-A3 to the reply affidavit dated 15th march 2011 in proof of his case in this regard.
He argued that it is a deliberate manipulation of facts for the Appellant to claim that no document from ACN connects the 1st Respondent to the election. He argued that the 1st Respondent had always been consistent that he polled 61 votes to emerge the winner at least as announced by the 2nd Respondent. To substantiate this averment the 1st Respondent attached Exhibits B, B1, A1-A3. Exhibit B shows the 1st Respondent polled 61 votes to emerge the winner. Exhibit A1, the Vanguard Newspaper issue of 24th January 2011 at page 42 published in its report captioned ”Result at a glance” states that the 1st Respondent scored 61 votes.
Exhibit A2, the Nation Newspapers issue of January 14th 2011 published in its report captioned ”Fashola, other candidates emerge at primaries” shows that the 1st Respondent candidature was ratified by the party.
Exhibit A3, P.M. Newspaper issue of January 13th 2011 published in its report captioned ”winners of ACN Lagos primaries” as follows: House of Representatives – Olukolu Ganiyu Tunji – Amuwo-Odofin.
Counsel further argued that the documents exhibited corroborate the averments of the 1st Respondent and corroborated the account of what transpired at the primary election of the 2nd Respondent as stated by the officials of the 3rd Respondent in Exhibit B and B1.
The alleged contradictions, according to the Appellant were in respect of the number of votes scored by the Appellant and it was before the amendment. He argued that the lower court noted with keen interest that the account of the 1st Respondent of the result of the primary election after the amendment tallied with his depositions in the further and better affidavit and Exhibit B attached to the reply affidavit. No exhibit was attached to the amended originating summons dated 9th March 2011, hence the need to file a reply affidavit to react to the various counter affidavit and to attach the necessary documents. The 1st Respondent relied solely and heavily on the documents attached to the reply affidavit of 15th March 2011 and on no other documents that have ceased to exist after the amendment. Any argument with reference to the uncertified Exhibit attached to the originating summons is completely bereft of the position of the law. After the amendment of the originating summons, the 1st Respondent and indeed all the parties are stopped from relying on documents earlier attached to the affidavit of 17th February 2011.
Counsel asserted that the same I. K. Bawa Esq, Acting Director Legal of the 3rd Respondent certified Exhibit B1, which is on the letter headed paper of the 3rd Respondent. There is a presumption that I. K. Bawa Esq held that position in INEC at the time he certified Exhibits B and B1.
Counsel argued that Exhibit SOS1 a congratulatory letter from 2nd Respondent – ACN is of no probative value as against the evidence in Exhibit B1, B2 and A1-A3 attached to the reply affidavit which was overwhelming.
Counsel argued that INEC recorded the results as announced in compliance with Section 86 (1), 87 (4) C (ii) of the 2010 Electoral Act and Section 91 (4) of the Evidence Act.
If the 3rd Respondent is entitled to ”observe the election to ensure a strict compliance with the law” it is also entitled to produce Exhibit B and B1 in strict proof of the results of the primary election as announced by 2nd Respondent.
Counsel submitted that not every minor discrepancy in the evidence of a party will nullify the suit and consequently defeat the appropriate reliefs a party is entitled to recover from the court. He cited Agbakoba v. INEC (2008) 18 NWLR Pt. 1119 Pg. 489 at Pg. 534.
Learned Respondent’s counsel argued that the error on the face of Exhibit B1 regarding the date is not sufficient to undermine the authentic account as regards the results of the primaries conducted by the 2nd Respondent on 12th January 2011.
Counsel submitted further that the issue as to the error in the date on Exhibit B1- was not raised at the lower court but is raised before this court as a fresh issue. The Appellant’s counsel it is argued neither sought not obtained leave to raise and argue the issue on appeal.
Counsel urged the view that the Appellant’s argument’s on the issue of Exhibit B1 is a frivolous argument since it is merely an attack on the covering letter and not the certified Result. He argued that Exhibit B1- and B2 are not in conflict with any other result as there is no other except Exhibit B1 and B2.
I have carefully considered the evidence on record and the arguments of learned counsel for the Appellant and 1st Respondent respectively particularly regarding the issue of the various ”contradictions” in the evidence led at the trial court by the 1st Respondent. This is also very important in relation to whether or not the 1st respondent proved his case at the trial court to be entitled to the declarations sought and obtained.
It is the position of law that in cases commenced by way of originating summons, like cases commenced by writ of summons, the originating summons takes the place of the writ and the affidavit evidence in support take the place of oral evidence while exhibits take the place of documentary evidence. See Agbakoba v. INEC (2008) 18 NWLR Pt. 1119 Pg. 489 at Pg 549.

In the case of Ekekeugbo v. Fibere Sima (1994) 3 NWLR Pt. 335 at 707 at Pg. 731 A-B the Court of Appeal held that an affidavit is self contradictory if the information contained in its annexures states facts inconsistent with it. And the court went further to state in the case of Balogun v. Shonibare (1997) 3 NWLR (Pt. 493)317 at Pg 331 C, that once an affidavit is self contradictory, it need not to be challenged by the other party as whatever facts the affidavit intends to establish would have been destroyed by the contradiction in the annexures.
At page 488 of the record, the trial court held on the issue of the “contradictions” in the documents brought by the 1st Respondent as follows:
”It is true that there were minor discrepancies in the figures given in the document earlier brought by the plaintiff before the amendment of his originating summons but these minor discrepancies earlier highlighted in this case are not enough to down grade the account given by the staff of INEC who monitored the exercise.”
I have considered the various instances of so called ”contradictions” as I itemized earlier on in this judgment. In my view they consist of merely discrepancies in the figures tendered by the 1st Respondent in relation to the actual number of votes scored by his opponents during the primaries. In fact items 1-4 set out above in this judgment are in my view non consequential since they relate to the number of votes scored by the 1st Respondent’s opponents. Items 5 and 6 on the other hand give room for thought. Item 6 is a list of delegates who petitioned that they actually voted for him. They amount to 71 while the official figure is that only 61 delegates voted for the 1st Respondent. Since the petition of party members cannot suffice as acceptable or conclusive evidence of the scores at the primaries being subject in my view to exclusion under section 91 (3) of the Evidence Act, it is immaterial.

I agree with the learned trial judge as stated above and the learned 1st Respondent’s counsel that since the documents with the various discrepancies in figures were attached to the original originating summons and not the amended originating summons, the amended originating summons is the one extant for our consideration. All the documents which had the discrepancies had been done away with after the amendment. The amendment clearly supercedes the original originating summons. The reply affidavit has been challenged by the Appellants because the 1st Respondent attached to it Exhibit B and B1. I do not think that attack on the reply affidavit is justified. The reply affidavit indeed cannot be used to make or repair the case of the Plaintiff in an originating summons but where the reply directly challenges the counter affidavit on a material particular, the Exhibits attached to same would be material and relevant.
Let us look at the case as made out by both parties. The first originating summons filed on 17th February 2011 in paragraph 10 of the supporting affidavit on page 7 of the record referred to Exhibit B which the 1st Respondent claimed to be the report from the 3rd Respondent officials who observed the primary election. Even though it had ACN lettering on it, it was unsigned and undated. In the amended originating summons, the same document was referred to in paragraph 10 on page 304 of the Record.
However, the Appellant joined issues on this point in paragraph 21 and 22 of the counter affidavit to the originating summons. The said paragraphs 21 and 22 are set out below:
”21 That against the deposition in paragraph 10 of the Affidavit, the 3rd Defendant did not conduct the election but only observed the election to ensure a strict compliance with the law.
22. That the result purportedly gotten from the 3rd Defendant (Exhibit B) is wrong and not correct.”
To rebut the above, the 1st Respondent in his reply affidavit to the 1st and 2nd Defendants’ (Appellant and 2nd Respondent) counter affidavit in paragraphs 7 and 8 thereof. The paragraphs are set out below. It is on page 335 of the record.
”7. That the result of the votes polled by the contestants including the 1st Defendant at the primaries of the 2nd Defendant on the 12th day of January 2011 is as contained in Exhibit B.
B. That the 3rd Defendant Certified and confirmed the genuineness of Exhibit B as the authentic result of the 2nd Defendant primaries in Lagos State vide its cover letter dated 14th March 2011. Now shown to me and marked Exhibit B1 the said letter of the 3rd Defendant.”
It is my humble view that the Appellant having denied the correctness of the report of the 3rd Respondent and because issues had been joined by the parties on that point ab initio, the Appellant cannot be heard to say that she was taken by surprise by Exhibit B1 – the covering letter to Exhibit B. In any event the matter of fact of the observance of the 3rd Respondent of the primaries had been put in issue by the 1st Respondent. Thus the 1st Respondent in rebuttal can put in Exhibit B1.
It is true that generally a reply is not necessary if its only purpose is to deny the allegations made in the statement of defence. This is so because there is implied joinder of issues. One main use of reply is to answer allegations which a Defendant who raised a plea by way of confession and avoidance might have made. The proper function of a reply in pleadings is to raise in answer to the defence any matter which to be admissible in evidence must be specifically pleaded or which makes the defence not maintainable or which otherwise might take the defence by surprise or where because of the defence filed, the Plaintiff proposes to lead evidence in rebuttal or to raise issues of facts not arising out of the two previous pleadings. See Bakare v. Ibrahim (1973) 6 SC 205, Akeredolu v. Akinremi (1989) 3 NWLR Pt. 108 page 164 at page 172; Ishola v. S. G. Bank (1997) 2 SCNJ 1 at 16. We must remember that Exhibit B – the figures of the scores had always been filed with the 1st Respondent processes and only Exhibit B1 came in with the Reply. The fact of INEC monitoring the election had always been pleaded. It is trite, that facts and not evidence need be pleaded. Where the need arises additional evidence can be adduced in reply as rebuttal. I am of the view that in the circumstances of this case, the reply affidavit with its Exhibits are relevant and material.
The 1st Respondent sought declaratory reliefs at the trial court. It is trite that for a Claimant to succeed in securing a declaratory order, he must prove his case with preponderance of evidence and on the balance of probabilities. To secure a declaration – that is a pronouncement of a factual state of affairs from the court, a Claimant must prove the existence of such facts before the court can pronounce them to be true. The onus of proof is on the Claimant/Plaintiff who cannot rely on the weakness of the case of the Defendant. See Monodu Olubodun & Ors V. Oba Adeyemi Lawal (2008) 6 SCNJ 269; Dumez Nig Ltd V. Peter Nwakhoba (2008) 12 SCNJ 768.
There is of course no doubt in my mind that this court cannot rely on Newspaper publications etc which the 1st Respondent relied on among other evidence. It is a non issue to consider photocopies of newspaper publications as having any probative value since they have no such value. Newspaper publications are only proof that the publication was made and not proof of the truth of the contents of the said publication.
The smoking gun – that is the evidence relied on by the 1st Respondent which was accepted and relied on by the learned trial judge is contained in Exhibit B & B1. Exhibit B1 is the covering letter by INEC signed by three INEC officials to the effect that they witnessed the primary election of the 2nd Respondent which took place on 12th January 2011. Exhibit B is a detailed analysis of the result of that election which was attached to Exhibit B1. The Appellant has attacked Exhibit B1 the covering letter by INEC because the date on the letter – that is the date the letter was purportedly written i.e. 15th January 2010 is a clear year before the incident to which it relates occurred.
Learned Appellant’s counsel is of the view that for that reason, the court cannot rely on such a document. On the other hand, the 1st Respondent is urging the court to regard the date as a mere typographical error which can easily be corrected by the court.
It is my humble view that the learned 1st Respondent’s counsel did not take advantage of the proviso to section 132 (1)(a) of the Evidence Act and to ensure that the makers of the document – the INEC officials should have sworn to a further affidavit to correct the date on the document – Exhibit B1.
This is because there is a presumption as to the date a document was made in accordance with section 125 of the Evidence Act. This presumption was not rebutted by the 1st Respondent. Be that as it may, I have considered the fact that this issue was not raised at the trial court and thus the trial court was not in a position to pronounce on same. This issue being a fresh issue, the Appellant should have first sought and obtained leave to bring same before this court on appeal. A close look at the record shows that the issue of the date on Exhibit B1 was not raised in the Appellants address filed on 9th March 2011 or during oral address on 23rd March 2011 on page 315 – 325 and page 470 -473 of the record respectively. On that score alone this issue is liable to be resolved in favour of the 1st Respondent. This court therefore lacks the jurisdiction to pronounce on it. All the arguments proffered by the Appellant’s counsel in that regard go to no issue. See UNITY BANK PLC V. EDWARD BOUARI (2008) 2 SCNI 116; Agbakoba v. INEC supra (2008) 12 SCNJ 619; University Trust Bank v. Dolmetsh Pharmacy (2007) 6 SCNJ 152.
I may say however that all the affidavits in support of the processes filed by all the parties are ad idem on the fact that the primaries took place on 12th January 2011 and not any time in 2010. These averments stand to rebut any other date in Exhibit B1.
The Learned trial judge held at page 488 of the record thus:
“It is obviously clear that since the defendants did not put the result declared by the Electoral Committee of the Party at the said Election, there is nothing to block the belief of this court that Exhibits B, B1, to this reply affidavit is the authentic record of what transpired at the Primary Election on 12/1/2011. It is very clear that it is the plaintiff and no other contestant that won the Primary conducted on 12/1/2011.”
At this point, we are still left with the smoking gun presented by the 1st Respondent and accepted by the trial court as the authentic result of the Election. A clever attempt was made by the Appellant’s counsel to disconnect Exhibit B from Exhibit B1. However, the law is that a document and its attachment have the same legal weight.
In Orizu v. Anyaegbunam (1978) SC Reprint page 18 the Supreme Court held that where a document is validly admissible, its attachments go with it. Thus Exhibit B1 attached to Exhibit B goes with it.
On page 326 of the record, the National Legal Adviser of the 2nd Respondent swore to an affidavit stating in paragraphs 3 and 4 thereof that during the election conducted on January 12, 2011 the 1st Respondent scored 9 votes while the Appellant scored 82 votes. We have a case of oath against oath and two different election scores from the same primary election, one authenticated by INEC and the other one by averment of the party. Learned Appellant’s counsel had argued that the weakness of the Defendant’s case does not matter when a declaration is being sought. However in our adversarial system of jurisprudence, once the Plaintiff has discharged the onus of first proof of a fact which I am of the view has been done in this case, the onus then shifted on the Defendant to rebut also by credible evidence the facts adduced by the Plaintiff.

I am of the view that the only proof of the winning of an election is the election results duly issued. Where there are no results, mere averment by a party cannot stand by the conducting authority. The mere averment by the 2nd Respondent as evidenced by the congratulatory letter Exhibit SOS1 cannot be proof positive of the result of the election. Even though the INEC officials did not actually conduct the primaries election, they were duty bound to observe same and to ensure strict compliance with the Electoral Act in the conduct of the party primaries. The INEC officials were also duty bound to take a record of what transpired. It has not been denied by either party that the INEC officials who signed Exhibit B1 actually monitored the primaries.
The INEC officials, vide Exhibit B1 recognized Exhibit B. In writing Exhibit B1 they confirmed the accuracy of Exhibit B.
Section 85 (2) (b) of the Electoral act states as follows:
(2) The Commission may, with or without prior notice to the political party monitor and attend any convention, congress, conference or meeting which is convened by a political party for the purpose of-
(b) nominating candidates for an election at any level
Section 86(1) of the Electoral Act 2010 provides as follows:
”The commission shall monitor and keep records of the activities of all the registered political parties.”
Section 87 (1), (4) (c) (ii) and 87 (10) of the Electoral Act 2010 provide as follows:
(1) A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions”
(4) A political party that adopts the system of indirect primaries for the choice of its candidate shall adopt the procedure outlined below –
(c) In the case of nominations to the position of a Senatorial candidate, House of Representatives and State House of Assembly a political party shall, where they intend to sponsor candidates –
(ii) The aspirant with the highest number of votes at the end of voting shall be declared the winner of
the primaries of the party and the aspirant’s name shall be forwarded to the commission as the candidate of the party; and 87(10) Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State for redress.
Election matters are sui generis as such the National Assembly in its wisdom enacted sections 85, 86 (1) and 87 (4) (c) (ii) 87 (10) of Electoral Act 2010 (as amended) to provide for authentic and well monitored primaries of the parties. In the circumstance, once the result of the primaries election of the political parties is announced and record thereof taken by INEC, a production of the duly certified result from the custody of INEC is a conclusive proof of the party activities. See Sections 111, 112 and 114 of the Evidence Act.
In the circumstances, I would agree with the learned trial judge and hold fast to the view that Exhibit B1 & B2 are credible and acceptable and admissible evidence with high probative value of what occurred at the 2nd Respondent’s primaries held on 12th January 2012.

During the hearing of this appeal, learned counsel for the Appellant submitted to the court certified copies of the consolidated judgment of the Supreme Court in suit No. SC/157/2011 and SC/334/2011 LADO & ORS V. CPC & ORS delivered on 2nd December 2011 to buttress the point that this case was not justiciable before the trial court being wholly an intra party matter. That was not an issue submitted in any of the briefs to us for determination and was not derived from any of the grounds of appeal. I wish to state however by way of obiter and because it touches on jurisdiction that the facts of that case are clearly distinguishable from the facts of this case. In Lado v. CPC there were two different party primaries in which different sets of candidates were elected to vie for different political offices. The Supreme Court held that neither the courts nor INEC can determine for the party which of its primaries was the authentic one. The Supreme Court re-asserted the supremacy of the party when it relates to the conduct of its primaries. In this case, there was no controversy about the conduct of the election but about who actually won or rather who could prove that he or she won.
I would accept the argument of the 1st Respondent’s counsel that the position of the law similar to section 86 (1) of the Electoral Act 2010 (as amended) was emphasized by the Supreme Court in the landmark case of Amechi v. INEC (2008) 5 NWLR Pt. 1080 Pg. 227 at Pg. 296 where the apex court per Oguntade JSC held that:
”The Respondents counsel in their briefs has strenuously argued that political parties have the right to put up as candidate for elective offices any persons they deem fit.
They relied with measure of confidence on the decisions of this court in Dalhatu v. Turaki (2003) 7 S.C 1 (2002) 15 NWLR (Pt. 843) 300 and P.C. Onuoha v. R.B.K. Okafor (1983) S.C.N.L.R. 244 and some others.
Counsel would appear however to have overlooked the fact that there were no provisions of Electoral Act similar to section 34 (2) of the Electoral Act, 2006 in force at the time these cases they relied upon were decided. Put simply section 34 (2) has altered the law and made those cases inapplicable in cases as this. It must be borne in mind that the political parties were a creation of section 221 of the 1999 Constitution. The same 1999 Constitution in section 222 imposes duty on parties to file copies of their Constitution with the Independent National Electoral Commission (INEC). Nothing in a party’s constitution can override or be superior to the Constitution of Nigeria and the laws validly enacted by the authority of the Nigeria Constitution.
Under section 85 of the Electoral Act 2006, it is mandatory that political parties inform INEC of the date and time of holding a convention or congress summoned for the purpose of nominating candidates for any of the elective offices under the Electoral act 2006. If parties were not to be bound by the result of their party primaries in the nomination of candidates at any level, why would it be necessary for Independent National Electoral Commission’s (INEC) representatives to be present at and monitor the proceedings of such congress?
It seems that the obligation on the parties to inform INEC of such congress was to ensure that INEC would know and keep a record of candidates who won at the primaries.”
(underlining mine)
Prior to the 2006 Electoral Act, the party was supreme on the issue of candidate’s nomination to vie for elective offices. This was confirmed by Onuoha v. Okafor and cases of similar ilk. At that time, parties could substitute candidates who won primaries for others at will. In their wisdom, the legislature in the 2006 Electoral Act enacted section 34 (2) by which political parties were obliged to give cogent and verifiable reasons for substituting a candidate they had already nominated to INEC. In the 2010 Electoral Act, substitution of candidates was entirely prohibited except in the case of death or withdrawal of the candidate. It is interesting to note that there is no equivalent of section 87 (10) of the 2010 Electoral Act in the 2006 Electoral Act. The legislature again in their wisdom being participants in the growth of democratic culture in Nigeria, decided to make justiciable any disaffection between a party member and his party as a result of the conduct of the primaries. The courts must not frustrate the will of the people as enacted in section 87 (10) of the Electoral Act 2010.
Since the inception of democratic dispensation, the courts have tried to enforce the lofty ideals of democracy to wit government of the people, by the people and for the people. Indeed by the calling of a judicial officer, the very essence of the judicial oath implies that a judicial officer must in all situations be a democrat. Where party faithful have in fact voted at the basic and primary level for whom they want to represent them in political offices, it is incumbent that the judicial process be used to entrench rather than frustrate their wishes.
As I said earlier, my opinion on the interpretation of section 87 of the Electoral Act is made obiter. The main issue of fact as regards who proved that he/she won the primaries I have already resolved in favour of the 1st Respondent.
The facts and justice of this case are such that issues 1 and 2 must be resolved in favour of the 1st Respondent.
As the penultimate court I am aware that all issues submitted for determination must be decided so I shall consider the remaining issues seriatim.
ISSUE THREE
This issue turns on whether or not the Appellant was qualified to contest for the primaries and for the general elections in view of the provisions of section 66 (1) (f) of the Constitution. Learned Appellant’s counsel urged the view that the court should give a literal interpretation to the unambiguous words of the Constitution and construe that the 30 days prescribed by the section under consideration is not 30 days before a party’s primaries but 30 days before the general elections. Counsel submitted that there is a difference between qualification for general party primaries – the later being the internal affair of the political party. He cited on the issue of interpretation Buhari v. Obasanjo (2005) 2 NWLR Pt. 910 Pg.241. Counsel argued that the position of the 1st Respondent as it relates to qualification for primary election is incompetent as it is an internal affair of the party to which the court would not inquire and the argument as it relates to the qualification for the general election is a post electoral matter. The action of the plaintiff was therefore speculative, academic and premature.
The cause of action will only arise after the election and the proper venue will then be Election Petition Tribunal constitutionally set up to look into such matter. As at the time of coming to judgment against the Appellant herein, the matter was and still remains hypothetical. The position of the law is that the court has no business with speculative matters or academic matters that have no live issues. He cited Awojugbagbe Light Industry Limited v. Chinukwe (1995) 4 NWLR (Pt. 390) 329; Ejoh v. Wilcox (2003) 13 NWLR (pt. 83S) 488 at 509; A. G Federation v. ANPP (2003) 18 NWLR (Pt. 851) 182.
On this issue, learned 1st Respondent’s counsel argued that in the eyes of the law that is ”De jure”, the Appellant did not contest at the primaries being not qualified to do so. Learned 1st Respondent’s counsel submitted that all courts of law in Nigeria are empowered to enforce the provisions of 1999 Constitution at all levels and at any stage. Where there is obvious contravention, the issue ought not to be left for a different court to determine.
The question as to the qualification of the Appellant cut across all stages of the contest for the election including the primaries. He cited ANPP v. Usman (2008) 12 NWLR pt. 1100 Pg. 1 at 54 – 55 and Ononghen JSC in Ugwu v. Ararume
Learned 1st Respondent’s counsel argued that forfeiture of salary in lieu of retirement is not an alternative under section 66 (i) (f) of the 1999 Constitution. Learned counsel argued that since one of the reliefs sought by the Appellant before the Court of Appeal is that the Appellant be issued with certificate of Return for the Federal Constituency, it stands to reason that the issue of qualification of that candidate to contest the election must be settled first. He cited Eiiogu v. Irona (200 g) 4 NWLR Pt. 1132 Pg. 513 at 561.
Let me say first of all, that I agree with learned 1st Respondent’s counsel that the issue of the qualification of the Appellant to stand for ”election” cannot be an academic question given the nature of the reliefs sought before this court by the notice of appeal filed. The learned trial judge held as follows on page 489 of the record “By virtue of section 66 (f) of the 1999 constitution as amended any one aspiring to be elected to the House of Representatives or Senate and who works with Government is expected to retire from such service at least one month before the Election day…”
I cannot with the greatest respect agree with the learned trial judge on this interpretation of the provisions of section 66 (i) (f) of the constitution.
Section 66 (1) (f) Provides:
(1) No person shall be qualified for election to senate or the House of Representatives if –
(f) he is a person employed in the public service of the Federation or of any state and has not resigned, withdrawn or retired from such employment thirty days before the date of election
The above section, given its literal meaning is quite clear. The ”election” referred to must be the election to the Senate or House of Representatives. It cannot refer to any other election outside the contemplation of that section. It is not the business of the court to enquire into the qualification of a candidate for the primaries. If a party decides to sponsor an unqualified candidate at the time of the general election, it has only itself to blame since by virtue of Section 65 and 66 of the 1999 Constitution and Section 138 (1) (A) of the Electoral Act 2010, that would be a basis to challenge the election of such an unqualified candidate at the Election Petition Tribunal.
The constitutional non qualification envisaged by section 66 (i) (f) of the Constitution in my humble view must be limited to the time frame relevant to the general election and not to the party primaries of the different political parties. That is the only literal interpretation that would not lead to absurdity.
This issue is resolved in favour of the Appellant.
ISSUE FOUR
In respect of this issue, learned Appellant’s counsel complained that the 1st Respondent commenced the suit by way of originating summons wherein no questions were submitted for determination but declaratory and injunctive reliefs were sought and that the procedure was not based on the interpretation of any law, statute or document. Apart from that, the fact in issue of who is the valid candidate of the party is a very contentious one which the court should have determined by calling oral evidence as in hostile proceedings.
Counsel further submitted that in the instant case, the plaintiff in properly invoking the jurisdiction of the court must comply with the Rules of court stating that questions for determination is a sine qua non for declaration of rights to follow. Not having submitted any question for determination therefore, it is submitted that the lower court’s competence was not validly invoked as the condition precedent was not fulfilled.
He submitted that the attempt by the learned trial judge to encapsulate conditions precedent to the validity of an action as procedural formalism is clearly misconceived and a misdirection as conditions precedent to the validity of an action enjoys the same status as statutes of limitation, the noncompliance with, which robs a Court of the competence and jurisdictional capacity to determine an action.
Counsel argued that it was wrong of the trial court to conclude that the failure of the 1st Respondent to come properly before the court was a deficiency in form and not in substance. He cited Olujimi v. E.S.H.A. (2009) 11 NWLR Pt. 1153 Pg. 464; Obadanya v. Babafemi (2000) 15 NWLR Pt. 689 Pg. 1 at 17-18; N.B.N. v. Alakija (1978) NSCC 470 at 477. Counsel urged the court to uphold the preliminary objection to the suit filed at the trial court and strike out the originating summons.
Learned 1st Respondent’s counsel in opposition contended vehemently that the preliminary objection raised by the 2nd Defendant now 2nd Respondent at the trial court that there was want of questions for determination on the face of the originating summons was one as to form.
Counsel submitted that a combined reading of Order 3 Rule 6 and Rule 9 (i) of the Federal High Court Rules 2009 shows that there are different formats set out in the schedule to the rules. Counsel insisted that form 3 set out in the schedule to the Federal High Court (Civil Procedure) Rules 2009 contains requirements as to questions for determination. Form 4 to the same schedule requires that the reliefs sought to be set out without any requirement as to questions for determination. Lastly, Forms 5 contains no requirement as to questions for determination or the reliefs sought.
By the Rules of the lower court, the three (3) set of Forms qualify as formats of Originating Summons. The Forms do not lose its qualification as an originating summons merely because it does not contain requirement as to questions for the determination of the court.
Counsel submitted that the amended originating summons was brought pursuant to the specified provisions of a substantive law. The reliefs sought were clearly set out on the face of the originating summons vis-a-vis the construction of a document or documents attached to the affidavit in support.
On this premise, the 1st Respondent sought the determination of his rights and obligation against the Appellant and the 2nd Respondent. In the circumstance, the amended originating summons dated 9th March 2011, does not lose its competence for want of questions for determination. Learned counsel cited Anyanwoko v. Okoye (2010) 1-2 MJSC 51 at 41; (2010) 5 NWLR Pt. 1188 Pg.497 at Pg. 515.
Counsel argued that the provisions of the Rules of Court must be read in such a way as to give effect to the substantial justice of a case rather an unjust adherence to technical rules. He opined that the position of law is that deficiency as to form will not defeat the substance of the case.
Counsel further submitted that the method of originating summons is by far the best in the circumstance since it is not in controversy that the section 87 (4) (c) (i) & (ii) of the Electoral Act 2010, section 66 (i) (f) of the 1999 Constitution were to be construed by the trial court before arriving at the conclusion as to whether or not the 1st Respondent is entitled to the reliefs sought. He cited Shitta-Bey v. A.G. Federation (1998) 10 NWLR Pt. 570 Pg. 392; Agbakoba v. INEC (2008) 12 SC Pt. 111 Pg. 71; (2008) 18 NWLR Pt. 1119 Pg. 489 at 538. Counsel urged this court to hold that in this case there was no need for oral evidence to prove who won the election and that the procedure of proving who won the primaries can be by originating summons. On this point, the learned trial judge held as follows on page 481 of the record Vol. 2:
”The provisions of the rules are very simple and clear and they do not need any construction before they are understood. There is no gainsaying the fact that the hallmark of an originating summons is the determination of questions of construction arising under a deed, will, enactment or other written instrument. The format that is most appropriate in this case, that in Form 3 and not Forms 4 and 5. Form 3 deals generally with originating summons while Forms 4 is for special applications such as taxation, cost, etc. form 5 specifically deals with exparte originating summons. If the counsel had used Form 3, he would have submitted questions for determination. In the instant case, the originating summons did not generated (sic) questions for answer. This truly is a deficiency in form and not in substance, Under the Rules such a deficiency cannot defeat the substance as the new spirit in jurisprudence is in favour of substantial justice and not technicalities.”
2nd Respondent filed the notice of preliminary objection and written address dated 17th March 2011, at the lower court challenging the form adopted by the 1st Respondent for want of question for determination on the face of the originating summons.
In the Appellant’s written address at the lower court at page 435 of the record, the Appellant had argued as follows at paragraph 3.14 of the address:
”My lord, it is clear from the nature of originating summons that it is upon the determination of questions submitted to the court that the court will make declarations and orders. Without determining the questions, declarations and orders cannot be made. The questions for determination transcend mere technicality as they are the heart of the originating summons.
Without questions for determination, a purported originating summons cannot be properly called an originating summons.”
Order 3 Rule 6 of the Federal High Court (Civil Procedure) Rules 2009 provides as follows:
Any person claiming to be interested under a deed, will, enactment or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.
Rule 9 (1) provides:
”An originating summons shall be in the Forms 3, 4 or 5 to these Rules, with such variations as circumstances may require
The objection raised by the Appellants at the trial court and made an issue here is actually restricted to the form used by the 1st Respondent which did not include any questions for determination.
Order 51 Rule 1 of the Federal High Court (Civil Procedure) Rules 2009, provides as follows”
”Where in beginning or purporting to begin any proceeding or at any stage in the course of or in connection with any proceeding, there has by reason of anything done or left undone been failure to comply with the requirements of these Rules, whether in respect of time place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order therein.”
The provision of the rule as quoted above is to give effect to the fundamental objective of the Rule of the Honourable Court as contained in Order 1 Rule 4 of the Federal High Court (Civil Procedure) Rules 2009, which provides:
”The fundamental objective of these Rules is, just and expeditious disposition of the cases.”
In Micheal Okoro v. The State (1988) 3 NWLR (Pt. 81) 214 at 220, the Apex court held inter alia:
”The court should see to that justice is never defeated by technical rule of procedure. These rules should be seen a subservient hand-maid to justice not as omnipotent master at war with justice.” I am of the view that the 1st Respondent brought the action pursuant to section 87 (4) (c) & (ii) of the amended Electoral Act 2010 and section 66 (i) (f) of 1999 Constitution thereby seeking the interpretation of these provisions of the law. These are the provisions of the enactment the 1st Respondent prayed the lower court to interpret vis-avis the Exhibits listed above as required by Order 3 Rule 6 of the Federal High Court (Civil Procedure rules) 2009.
I have to agree with the learned 1st Respondent’s counsel that where total reliance for the reliefs sought from the court is placed on the provisions of the law and written instruments or documents, the appropriate procedure to ventilate such claim is by originating summons as contained in Order 3 Rule Shitta-Bey v. INEC (2008) 12 S.C. (Pt. 111) 171 or (2008) 18 NWLR (Pt. 1119) 489 at 538 paras C-E.
From the records, it is clear that the amended originating summons dated 9th March 2011 was brought pursuant to Order 3 Rule 9 of the Federal High Court Rules 2009, Section 87 of the electoral Act 2010 (as amended) and section 66 (i) of 1999 Constitution of the Federal Republic of Nigeria and under the inherent jurisdiction of the lower court. There is no doubt from the originating summons and the reliefs sought therein that the issues in 6 & 7 of the Federal High Court (Civil Procedure) Rules 2009. See the case of controversy and the questions the court must answer were not in controversy or not clear to both parties.
Order 3 Rules 6,7, 8 and 9 elaborately provide for the application of the originating summons. These Rules prescribed as follows:
”6. Any person claiming to be interested under a deed, will, enactment or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.
7. Any person claiming any legal or equitable right in a case where the determination of the question whether such a person is entitled to right depends upon a question of construction of an enactment, may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed.
8. A judge shall not be bound to determine any such question of construction if in the judge’s opinion it ought not to be determined on originating summons but may make such orders as the judge deems fit.
9. (1) An originating summons shall be in the Forms 3, 4 or 5 to these Rules, with such variations as circumstances may require.
(2) An originating summons shall be accompanied by:
a) An affidavit setting out the facts relied upon, and
b) Copies of all the exhibits to be relied upon.”
In Anyanwoko v. Okoye cited supra, the Supreme Court while interpreting order 6 Rule 3 (1) of the Federal Capital Territory High Court Rules held that where the originating summons is in substantial compliance with the rules of court, by containing the reliefs and remedies sought from the court it cannot be faulted for not containing questions for determination. I am persuaded that the principle enunciated by the Supreme Court in Anyanwoko v. Okoye supra holds good in the interpretation of Order 3 Rule 6 – 9 of the Federal High Court Rules.
The rules provide 3 different format and if the 1st Respondent chose the wrong one, it was a mistake in my view which went only to form and not substance because unless it is an issue of substantial law that has been violated, technicalities must not be allowed to hold sway. I resolve this issue in favour of the 1st Respondent.
ISSUE FIVE
This issue revolves around the question of the failure of the 1st Respondent as put at the trial court to obtain leave of the court before serving the originating summons on the Appellant outside the jurisdictions of the court. The 1st Respondent had commenced the action by originating summons at the Abuja High Court. Parties are agreed on the fact that the 1st Respondent thereafter served the 1st Defendant/Appellant at 7th Avenue, R Close, House 4, Festac Town, Lagos, Lagos state (being the address for service) with the originating summons and other processes outside the jurisdiction of the Abuja Federal High court without leave of the court having been sought and obtained.
Learned Appellant’s counsel argued that an examination of order 6 of the Federal High Court Rules 2009 particularly Order 6 Rules 14, 15, 16 and 17 reveal that before service can be effected out of jurisdiction, leave of the court must first be sought and obtained. Such writ for service outside jurisdiction must be endorsed on the face of it showing that it is to be served outside jurisdiction.
Counsel submitted that the 1st Respondent’s service in Lagos of the originating summons issued at the Federal High court Abuja is therefore incompetent and has robbed the trial court of the jurisdiction needed to try the suit.
Counsel cited Madukolu v. Nkemdilum (1962) 2 SCNLR 341; M.V. Arabella v. NAIC (2002) 15 NWLR pt. 791 pg, 570 at Pg 570 at Pg. 583; Chacharos v. Ekimpex (1988) 1 NWLR Pt. 68 Pg. 88 at Pg.103; NNPC v. Elumah (1997) 3 NWLR pt.492 pg. 195 at 198 and 204.
Learned Appellant’s counsel argued that the defect being complained of went to the competence or jurisdiction of the trial court notwithstanding the participation of the Appellant at the trial being not a mere irregularity. Learned Respondent counsel argued in reply that the issue as to the propriety of the issuance and service of originating processes meant for service outside the jurisdiction of the Federal High court without the leave of court was not raised or muted at the lower court. On this premise alone, ground 7 in the notice of appeal dated 20th June 2011 and issue five predicated thereon are incompetent and are liable to be struck out because no prior leave has been sought and obtained before raising it here. He cited Ogbe v. Asade (1998) 18 NWLR pt. 1172 pg. 106 at Pg. 126; Akpan v. Bob (2010) 17 NWLR Pt. 1223 Pg.421 at Pg. 468 – 469.
Counsel argued that the issue and arguments of the Appellant is contrary to the provisions of order 6 Rule 31 of the Federal High Court Rules 2009. Counsel argued that Order 6 Rule 31 envisages ”out of jurisdiction” of Nigeria and not within Nigeria.
Counsel on another wicket argued that the Appellant had unreservedly waived any right to complain about being served out of jurisdiction, having fully participated in the hearing of the suit at the trial court until judgment was delivered. Counsel cited Famfa oil Ltd v. A.G. Federation (2003) 18 NSLR pt. 852 pg. 453; Ariori v. Elemo (1983) 1 SCNLR 1; Odua Investment & co. Ltd v. Talabi (199 7) 10 NWLR Pt. 523 Pg. 1 at Pg. 51 and 51-531.
Counsel submitted that in the instant case where the Appellant has filed her counter-affidavit and written address as in the cases of Odu’a Investment v. Talabi (supra); Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR [Pt. 109) 250 and Ezomo v. Oyakhire (1985) NWLR (Pt. 2) 195, then the Appellant had waived her right to complain. Thus the Appellant’s submission on this issue is bound to fail. The 1st Respondent urged the court to so hold. He also cited skenconsult Nig Ltd v. Ukey (1981) 1 SC 6; Nwabueze v. Obi Okoye (1988) 10-11 SCNJ 50.
There is no doubt that where an originating process is to be endorsed as contended by the Appellant, but served without being so endorsed, the service is voidable and can be set aside at the instance of the Defendant served with the process and who has not waived her right. This is without prejudice to the competence of the suit as constituted. see Famfa Oil Ltd v. Attorney General of the Federation (2003) 18 NWLR (Pt.852) 453.

In this case, the Appellant filed her counter affidavit and fully participated in the trial at the lower court and thus is not entitled to complain of any defect in the issuance and service of the originating processes. I must mention that there is a difference between a rule of procedure which can be waived by the parties or the court and a statutory provision which ordinarily cannot be waived by the parties. The rule requiring leave to serve originating processes of out of jurisdiction is provided for by adjectival law and a statutory law.
Order 6 Rules 17 states as follows:
17(a) An originating summons, where the proceedings begun by an originating summons might have been begun by a writ of summons under these Rules
Sections 96 and 97 of the sheriffs and civil Process Act cap 407 Laws of the Federation 2004 provide as follows:
96(1) A writ of summons issued out of or requiring the Defendant to appear at any court of State or the Capital Territory may be served on the Defendant in any other State or the Capital Territory.
(2) Such service may, subject to any rules of court which may be made under this Act be effected in the same manner as if the writ was served on the Defendant in the state or the capital Territory in which the writ was issued.
97. Every writ of summons for service under this part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice rehired by the law of such state or the Capital Territory, have endorsed thereon a notice to the following effect

The 1st Respondent came up with the seemingly ingenuous argument that order 6 Rule 31 should be interpreted to mean that ”outside jurisdiction” means out of the Federal Republic of Nigeria. That argument is misconceived. In the owners of the MV ”Arabella” v. NAIC (2008) 11 NWLR Pt. 1097 page 182 the Supreme court held that leave to serve a writ out of jurisdiction is not a matter of the court’s discretion. Not only is it provided for in the rules of the Federal High court, it is provided for in the sheriffs and civil Process Act. The court held that neither the Federal High court Act or the its rules expressly or otherwise exclude the provisions of the Sheriffs and civil Process Act. Thus obedience to the Rules for service is crucial to the prosecution of an action in court.

Any writ issued without endorsement for service outside jurisdiction is void. Its service without the requisite leave is also void. The Supreme court also held that the provisions of the sheriffs and civil Process Act are applicable to the Federal High court inspite of its national-wide coverage of the territorial jurisdiction of the Federal High court.

However, the rule regarding leave to serve outside jurisdiction has been severally interpreted liberally by the Apex court. In Odu’a Investment v. Talabi supra, the Apex court decided that a Defendant is deemed to have waived his complaint against non-endorsement of the writ of summons for service outside the state where after filing a memorandum of conditional appearance, he proceeds to file his pleadings.
In Odu’a Investment Co. Ltd v. Talabi (1997) 10 NWLR (Pt. 523) 1 at 51 para. G-H the Supreme court distinguished the case of Skenconsult (Nig) Ltd v. Ukey (1981) 1 S.C. 6 and Nwabueze v. Obi Okoye (1988) 10-11 SCNJ 50 from the case of Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (Pt. 109) 250; Ezomo v. Oyakhire (1985) NWLR (pt. 2) 195 and Odu’a Investment (supra).
The supreme court held that where the Defendant files his pleading after filing his memorandum of appearance, his application challenging the service of the writ on the ground of non-endorsement of the writ for service outside the State should be dismissed. He is deemed, in law, to have waived the irregularity. Perhaps, the dictum of Ogundare JSC in extensio will be here appropriate. The learned justice of the Supreme court in Odu’a Investment Co. Ltd v. Talabi (supra) at Pg51-52 para G-F said:
”It follows, therefore, that where the Defendant is served with a writ of summons in breach of section 97 and 99 of the Act, he has a choice either to object to the service by applying to have it set aside and the court ex debito will accede to the application, or ignore the defect and proceed to take steps in the matter. By entering unconditional appearance and filing pleadings as in the case on hand, he is deemed to have waived his right to object and cannot latter in the proceedings seek to set same aside because of the original defect, I am not unmindful of the fact that in Skenconsult v. Nwabueze this court had held that non-compliance with these sections would render the proceedings null and void. It would appear that this declaration was unnecessary in those case as the defendants were ex debito justicie entitled to have the proceedings set aside, because (1) in Skenconsult there was no service at all on the 2nd Defendant and the service on the 1st Defendant was irregular and he did no waive the irregularity and (2) in Nwabueze, the service on the Defendants were irregular and they did not waive the irregularity. In NEPA there was indication in the lead judgment of Mohammed JSC that there was no waiver which would suggest that, had there been waiver the decision might have been otherwise.
In Skenconsult, Nwabueze and NEPA, there was no waiver and this court in those cases, rightly, in my respectful view, set aside the defective service on the application of the Defendants. In Adegoke Motors there was waiver and this court reject similar application and rightly, too in my humble view.”
In this case at hand, the Appellants never raised this issue nor objected to the service at the trial court and participated fully at the trial. I am of the view that the Appellant is deemed to have waived any irregularity in the service. I must also mention that the Sheriffs and Civil Process Act with the judgment Enforcement Rules made pursuant to it though the later is a substantive law are actually in the nature of procedural regulations rather than substantial legislation.

I have to agree with the learned 1st Respondent’s counsel however that the Appellant ought to seek leave to argue this fresh point of law as ground 7 in the notice and grounds of appeal. Even when an issue of jurisdiction is raised on appeal for the first time, the Appellant needs the leave of the appellate court so to do. All the authorities say is that it can be raised at any time with leave of court. See Oshatoba v. Olujitan (2000) 2 SCNJ 159.
For reasons given above 5th issue is resolved in favour of the 1st Respondent. In totality, the justice of this case and for the reasons already copiously explained, I have to resolve all issues in favour of the 1st Respondent. The appeal is dismissed as totally lacking in merit. It is hereby dismissed. I award N=50,000 costs against the Appellant for the 1st Respondent.

JOHN INYANG OKORO, J.C.A.: I read in draft the lead Judgment of my learned brother, Ogunwumiju, JCA just delivered. I agree that this appeal is devoid of any scintilla of merit and ought to be dismissed. My learned brother has meticulously and quite efficiently dealt with all the salient issues submitted for the determination of this appeal and I do not have anything new to add except to say a few words in support of the Judgment.
Having carefully considered the five issues submitted for the determination of this appeal, I join to agree that issues one and two are key to the determination of this appeal. This is without prejudice to the competence of the other three issues.
The officials of the third Respondent, the Independent National Electoral Commission had written Exhibit B and B1 to support the contention of the 1st Respondent herein that he won the party primaries held on 12th January, 2011. Exhibits B and B1 are therefore germane to the determination of this appeal. The learned counsel for the Appellant has made much weather on the date of 15th January, 2010 written on Exhibit B1. Let me state unequivocally that this is a none issue as it was not raised or canvassed at the court below and there is no pronouncement on it by the lower court which could have made it a subject of appeal in this court. It is a new issue and there is no leave of this court sought and obtained before raising it. Having not obtained leave to raise it, it is incompetent and is accordingly discountenanced. See V. S. steel Nig. Ltd. v. Govt. of Anambra State (2001) 8 N.W.L.R. (pt.715) 454; Nigeria Customs Service v. Bazuaye (2006) 3 N.W.L.R. (pt.967) 303.
The findings of the learned trial Judge on the effect of Exhibits B & B1 is instructive and I shall reproduce it here as follows:
“The above result no doubt tallied with what the Plaintiff depose d to in his affidavit, and better and further affidavit.
It also tallied with alt the accounts in the newspapers presented in this case. If is true that there were minor discrepancies in the figure given in the document earlier brought by the plaintiff before the amendment of his originating summons but these minor discrepancies earlier highlighted in this case are not enough to down grade the account given by the staff of INEC, who monitored the exercise.
If is obviously clear that since the Defendants did not put in the result declared by the Electoral Committee of the party at the said election, there is nothing to block the ‘belief of this court that Exhibit B, B1 to the reply affidavit is the authentic record of what transpired at the primary election on 12/1/2011. It is very clear that ff is the Plaintiff and no other contestant that won the primary conducted on 12/1/2011”.
See page 488, Vol .2 of the Record of Appeal.
I agree entirely with the findings and conclusion of the learned trial Judgment reproduced above. The court below was right to rely on Exhibits B and B1 emanating from INEC to resolve the conflict between the Appellant and the first Respondent. The reason is, as was rightly observed by the court below, that the Electoral Committee of the 2nd Respondent did not file in court the result of the primary and as such that of the umpire encapsulated in Exhibits B and B1 is unassailable.
The Supreme Court in Amaechi v. INEC (2008) 5 N.W.L.R. (pt.1080) 227 at 296 held concerning the presence of INEC at a party primary as follows:
“If parties were not to be bound by the result of their party primaries in the nomination of candidates at any level, why would it be necessary for Independent National Electoral Commission (INEC’s) representatives to be present at and monitor the proceedings of such congress? It seems that the obligation on the parties to inform INEC of such congress was to ensure that INEC would know and keep record of candidates who won at the Primaries”.
I cannot agree more. This is the truth. Had INEC not been present at the primaries and kept record of who won the primaries, maybe the 1st Respondent would not have had any remedy. I agree with the court below that evidence available show unequivocally that the 1st Respondent won the party primaries of 12th January, 2011.
Based on the above and the further reasons contained in the lead Judgment of my learned brother, Ogunwumiju, JCA, I agree that this appeal is devoid of any scintilla of merit. It is also dismissed by me. I also agree that the 1st Respondent deserves cost of this action which I equally assess at N50,000.00.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have had the benefit of reading in draft, the lead Judgment of my Lord Helen Morenikeji Ogunwumiju JCA, in respect of this appeal and I agree that the appeal has no merit and ought to fail.
To me, the epicenter of the appeal may be found in the status of Exhibits B and B1 which were attached to the Reply Affidavit of the 1st Respondent at the lower court. These exhibits, being documents of the officials of INEC, support and justify the other exhibits A1 – 43 relied upon by the 1st Respondent in this appeal that he won the primary Election conducted by the 2nd Respondent (Action Congress of Nigeria) and as witnessed by the 3rd Respondent (INEC) from whose custody, Exhibit B and B1 were produced. The Exhibit B and B1 are certified proof of 3rd Respondent’s statutory record in this regard enjoined by sections 86(1); 87(4) (c) (ii) of the Electoral Act, 2010.
Arguments sought to be inferred in respect of the exhibits earlier attached by the parties and in particular by the 1st Respondent in the pre-amended or original originating summons, cannot hold, as amendment of that process brings into life a new process which by law necessitated and attracted a Reply process as was done by the 1st Respondent. The validity of those later processes cannot be challenged by relating them to the earlier documents, so long as there is no inherent legal disqualification relating to their validity, quality and authenticity.
There being none, reliance can be rightly made on same. Section 86 (1) and 87 (4) (c) (ii) of the Electoral Act, already reproduced in the lead Judgment provides, for the procedure for the conduct of party primaries. i.e. primary election and custody of documents for its statutory proof thereof. It enjoins that the 3rd Respondent should witness the conduct, certify the outcome and have the result registered or kept in its record. Having done so, as averred by 1st Respondent, the record of who the winner of that primary Election was, had become conclusive and admissible primary evidence of same under section 194 (1) of the Evidence Act, 1990. LFN, 2004 and section 111, 112, 114(i) Evidence Act.
I agree that it is not every minor discrepancy in evidence that will nullify or defeat a claim where a party has shown substantially that he, on the preponderance of evidence is entitled to Judgment.
The presumption of law, therefore is that there is no better documentary evidence in rebuttal of Exhibits B and B1 which ground the basis of the declaration of the 1st Respondent as the winner in the primaries.
Let us even look at the merit of the complaint against Exhibit B1 vis a vis the justice of the whole case. Exhibit B1 is the covering letter from INEC signed by three INEC officials to which is attached Exhibit B2 detailed results of the scores by each candidate at the primaries. It was duly certified by INEC. The attempt by the Appellant to say that “Bawa Legal officer” did not indicate the particular institution is an obvious attempt to split hairs and is in my view to no avail. It is too late at this stage to call upon the court to speculate on whether Bawa who certified the various documents purportedly emanating from INEC actually worked for INEC. In any event, section 114 (1) of the Evidence Act presumes that I.K. Bawa Esq. held that position in INEC at the time he certified Exhibits B and B1. The crux of the matter is to determine what probative value can be put on the said Exhibit B1 in view of the unexplained contradiction in the dates on the letter. A close look at the first paragraph of Exhibit B1 shows that the event referred to in the document relates to the primaries which occurred on 12th January, 2011. In my humble view, it would have been a more serious and entirely different thing if the reference made to the date of the occurrence of the primaries was a different date from the date the primaries actually took place. All parties agree on the fact that the party primaries actually took place on 12th January 2011. In the first instance, this court is obliged to take judicial notice of the fact that no House of Representatives primary took place in 2010. Secondly, all the affidavits which constitute oral testimony on oath are agreed that the primaries took place on 12th January, 2011.
The documents tell the facts as to their essence and the transaction they related to in their material essence and that is, that there was a conduct of a primary election and its attestation by the 3rd Respondent who kept and produced the record. That suffices. The conduct of party primary elections is the foundation and part and parcel of the democratic process. Actions relating to the political realm of electoral processes are to ensure that the people’s wishes are recognized and protected. They are so special that the essence of it should be to ensure that the wishes of the electorate or Electoral College as in this case, prevails. In this sense therefore, such electoral contest or litigation should be seen as being above normal and ordinary civil proceedings which may be infested with technicalities. Their importance to the well being of society places them above the normal day to day transactions between individuals which give rise to ordinary or general claims in courts. The Record kept by 3rd Respondent is a declaration in Rem binding between all the parties and any other persons connected with it. See Amiere Vs. Salami & 3 Ors. (1989) 2 NEPLR. The outcome of this electoral journey towards democratic elections should not be easily jettisoned on flimsy grounds as election is of public interest and in protection of the wishes of the “electorates” in that party exercise; their will should not be truncated on grounds of allegations not firmly established. The essential validity and purport of section 87 (10) of the Electoral Act 2010 has rightly been appreciated by my Lord Ogunwumiju JCA in her sagacious Judgment that I am transfixed in my certainty of thought that the essence of that provision has been captured in the Judgment of the trial court and rightly in favour of the 1st Respondent herein. The authority in the case of Amaechi v. INEC (2008) page 227 at 296 is conclusive as to the essence and the need to rely on there port of INEC in this matter. After all it had not been legally impugned. The unsuccessful attempt to impugn it, which must fail is that wrong assumption that the contrary view of the National Legal adviser of the 2nd Respondent, by his affidavit contained at page 326 of the Record that the Appellant scored a higher votes at the primaries than the 1st Respondent. This mere averment cannot supersede the official result as produced by the legal custodian thereof, who is presumed as a disinterested party at all times. See A.G. Federation vs. Abubakar (2007) SC pt.11, page 62 wherein the supreme court emphasizes that the 3rd Respondent must remain an impartial arbiter. I have not been shown any reason on the record of trial to doubt this fact, such that reliance on its report could be jettisoned. The courts must not be carpricious, as the courts are impartial watchdogs in the balancing of societal interest and grievances. I must not recoil knowingly, in this ambassadorial task on behalf of the immutable deity of justice, peace, and harmony. None of the candidates is sponsored by INEC. In any event, the law is that once a thing or an official act is shown to have been done, regularly, it is presumed that all conditions precedent to its validity have been complied with. The Latin lexicology is omnia presumutur rite esse acta. The Exhibit Sos1, i.e congratulatory letter of the 2nd Respondent is not proof of the election and its result as required by the Electoral Act. They had no legal duty to issue such a congratulatory letter. The 3rd Respondent had a duty to monitor, witness and keep record of the conduct and result thereof. See section 86 (i) of the Electoral Act, 2010. Whatever discrepancy in Exhibit B1 as to dating, no doubt was of no moment as it was an attachment to their letter Exhibit B which relates to the uncontested date of event and persons mentioned. An annexture or attachment must relate to the primary document and be admissible with it. See Orizu Vs. Anyaegbunam (1978) SC Reprint page 18 (SC). I also agree that the trial Judge could also take judicial Notice that election took place in 2011 and not 2010 and therefore a date in 2010 in Exhibit B1 must have been an error to be discountenanced. Be that as it may, the Justice of this case on the law and common sense is such that I must come to the irresistible conclusion that the appeal is a strenuous pursuit of technically against the fairness of it which swings and preponderates in favour of the Respondents in this appeal.

In conclusion, therefore, I concur that the appeal be dismissed. It is dismissed, accordingly.
I subscribe to the consequential order appertaining costs as made in the leading Judgment.

Appearances

Bola Aidi With him: Oba Olayiwola
J. O. OyedepoFor Appellant

AND

With him: I. A. Thanni, Tade Ogundimu, Tony Aghotse, J. J. Ogunyemi, Awatefe B. O. [Mrs) and Ogunsami (Mr) – for the 1st Respondent
Muiz Banire With him: Adebayo Badimus, Olamide Ajibola Jumoke Shodipo [Miss) and Oyekanmi Elegushi – for 2nd respondent
A.F. Lawal SLO INEC – for the 3rd RespondentFor Respondent

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