CHIEF ADEBISI ADEGBUYI V. ACTION CONGRESS OF NIGERIA (ACN) & ORS. (2012)

CHIEF ADEBISI ADEGBUYI V. ACTION CONGRESS OF NIGERIA (ACN) & ORS.

(2012)LCN/5397(CA)

In The Court of Appeal of Nigeria

On Thursday, the 24th day of May, 2012

CA/I/124/2011

RATIO

WORDS AND PHRASES: MEANING OF DISMISSAL

The word “dismissal” is defined in Black’s Law Dictionary Seventh Edition as:

“Termination of an action or claim without further hearing.” Dismissal can also mean striking out depending on the facts and circumstances of the case. Looking at the ruling of the court below as a whole it is my opinion that the use of the word “dismissal” by the learned trial judge was a slip. I am guided by the decision of the apex court in Ezeoke & Ors vs. Nwagbo & Anor. (1988) 3 SCNJ 37 at 45 wherein the Supreme Court stated:-

“As the judge in the statement of the case put forward by the defendants chose to use the word “admitted” rather that averred, the highest that can be said of it is that he committed a liquistic flaw, not that he was guilty of a misdirection for which an appeal should be allowed. It is noteworthy that he said:

“From the evidence before me it is my considered opinion that Ezenwaloli because of the quarrel he had with his brother Onwugbala pledged the land to the plaintiffs’ father.”

So he did not find for the pledge because of any admission but on the strength of the evidence before him. In my opinion, the use of the word admitted was a slip.”

(underlying mine for emphasis). PER ADZIRA GANA MSHELIA, J.C.A.

APPEAL: WHAT DOES THE COURT LOOK AT IN SETTING ASIDE A DECISION

Furthermore, it is now settled that an appellate court, looks and bases its decision, at the correctness of the decision and not necessarily, at the reason for the decision. In other words, an appellate court will not set aside the decision of a lower court which is right and must merely because the trial judge or the court below, gave wrong reasons for the decision. The paramount consideration for the appellate court is whether the decision is right and not necessarily whether the reasons are right. See L.T.P.P Ltd. vs. UBN Plc (2007) 1 WRN 117; Odukire vs. Ogunbiyi (1998) 8 NWLR (Pt.561) 339 at 350; Jikantaro & Ors v. Dantoro & 6 Ors (2004) All FWLR 390; A.G. Leventis Nig. Plc v. Akpu (2007) 46 WRN 1 at 27 and Taiwo & Ors v. Sowemimo (1982) 5 SC 60 at 74 – 75. PER ADZIRA GANA MSHELIA, J.C.A.

PROCEDURE: CIRCUMSTANCES UNDER WHICH AN ACTION CAN BE COMMENCED BY ORIGINATING SUMMONS

Originating summons should only be applicable in circumstances where there is no dispute or questions of fact or even the like-li-hood of such dispute.
Application by originating summons should never be a substitute for initiating contentious issues of fact.
Where the affidavit of the plaintiff leaves matters for conjecture, originating summons is not an appropriate procedure.

In Doherty v. Doherty 1968) NMLR 241 the apex court per Ademola CJN held that it is inadvisable to employ an originating summons for hostile proceedings. See also Osunbade vs. Oyewunmi (2007) All FWLR (parts 366-369) 1004 at 1010; Madam Roseline O. Ejura v. Ibrahim Idris & Ors (2006) 4 NWLR (pt.971) 442 at page 560-561; Amasike v. Registrar General C.A.C. (2010) 5-9 SC (Pt.1) 147 at 153; Ajagungbade III v. Adeyelu II (2001) 16 NWLR (pt.738) 126 at 197 paras G-H and Ossai v. Wakwah (2006) All 4 NWLR (pt.969) 208 at 228. PER ADZIRA GANA MSHELIA, J.C.A.

ACTION: HOW A SUIT COMMENCED BY ORIGINATING SUMMONS DETERMINED

In determining whether a suit was properly commenced by originating summons the court has a duty to read the entire content of the originating summons. PER ADZIRA GANA MSHELIA, J.C.A.

EVIDENCE: HOW IS A CONFLICT IN AFFIDAVITS RESOLVED

There are other facts in the affidavit and counter-affidavit which are irreconcilable in conflict. It is the law that in such situation oral evidence shall be given. See Falobi vs. Falobi (1976) 9-10 SC.1, 1976 1 NMLR 169; Eze vs. Attorney General Rivers State (1999) 9 NWLR (pt.619); Chigbu vs. Tonimas (Nig.) Ltd (1999) 3 NWLR (pt.593) 115 and Gbadamosi v. Alete (1998) 17 NWLR (pt.578) 402. PER ADZIRA GANA MSHELIA, J.C.A.

JUSTICES:

STANLEY SHENKO ALAGOA (OFR) Justice of The Court of Appeal of Nigeria

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

Between

CHIEF ADEBISI ADEGBUYI – Appellant(s)

AND

1. ACTION CONGRESS OF NIGERIA (ACN)
2. ALHAJI SEFIU ADEGBENGA KAKA
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of Ajumogobia J. of the Federal High Court, Abeokuta, delivered on the 1st day of April, 2011.
The appellant commenced this suit by originating summons dated 8th March, 2011, before the Federal High Court Abeokuta and sought for the following reliefs:-
1. A DECLARATION that the plaintiff, by virtue of being the only senatorial aspirant from Ogun East Senatorial District that duly paid for and obtained the Expression of Interest and Nomination Form in line with the 1st defendant’s Guidelines published in the Nation Newspaper of Wednesday 5 January 2011 (page 61) as at 12 noon of January 2011 for the primary election and Nomination Exercise, fixed for 10 January 2011, is rightfully entitled by the provisions of section 87 of the Electoral Act and Article 6(1)(A) and (B) of the aforestated Guidelines and Constitution of the 1st defendant to have his name forwarded to the 3rd defendant as the duly nominated senatorial candidate of the 1st defendant representing Ogun East Senatorial District.
2. A DECLARATION that the handpicking or imposition of the 2nd defendant by the 1st defendant as a Senatorial Candidate for Ogun East Senatorial District is null and void in that the 2nd defendant neither did pay for and obtain the Expression of Interest and Nomination Form in line with the 1st defendant’s Guidelines as at 12 noon 9th of January 2011 as per 1st defendant’s published guidelines in The Nation’s newspaper of Wednesday 5 January 2011 (page 61) nor participate in any primary election and nomination exercise on 10 January 2011 as none was held by the 1st defendant in breach of the compatible provisions of the Electoral Act and the Constitution and Guidelines of the 1st defendant.
3. AN ORDER setting aside the purported nomination of the 2nd defendant by the 1st defendant as the Senatorial Candidate for Ogun East Senatorial District on account of failure of the 1st defendant to conduct primary election or nomination exercise on 10 January, 2011 and the non-compliance of the 2nd defendant with the mandatory stipulations of the 1st defendant in breach of the compatible provisions of the Electoral Act and the Constitution and Guidelines of the 1st defendant.
4. AN ORDER directing the 3rd defendant to recognize and accept the plaintiff as the bona fide Senatorial Candidate for the Ogun East Senatorial District in that the plaintiff was the only senatorial aspirant that fulfilled and complied with the mandatory provisions of the Electoral Act, 2010 and the Constitution and Guidelines of the 1st defendant for the conduct of the primary election and nomination exercise and in seeking the office of senator of the aforesaid Senatorial District on the platform of the 1st defendant.
5. AN ORDER of perpetual injunction restraining the 3rd defendant from the Ogun East Senatorial District and placing the 2nd defendant’s name on the ballot for election purpose as the senatorial candidate of the 1st defendant in the general election fixed for 2nd April, 2011.

In the originating summons the appellant formulated the following questions for determination:
1. Whether the emergence of the 2nd defendant and or the forwarding of his name to the 3rd defendant as the Senatorial Candidate for the Ogun East Senatorial District without the conduct of primary election and the nomination exercise was not a violent breach of the provisions of section 87 of the Electoral Act, 2010 and the Articles 6(i)a and (b) and 21.3(a) and (b) of the Constitution and published Guidelines of the 1st defendant and which thus nullifies and voids the 2nd defendant’s purported nomination.
2. Whether by reason of the fact that the plaintiff qua Senatorial aspirant alone complied with the conditions stipulated in the published Guidelines of the 1st defendant as at 12 noon of 9th January, 2011, he (the plaintiff) was and still is, qualified to, and should, be recognized and accepted by the 3rd defendant as the bona fide Senatorial Candidate for the Ogun East Senatorial District on the platform of the 1st defendant.
3. Whether the handpicking or imposition of the 2nd defendant as the Senatorial candidate for the Ogun East Senatorial District on the platform of the 1st defendant and his presentation to the 3rd defendant as the nominated candidate for the senatorial election of 2nd April, 2011 should be set aside being in breach of statutory provisions and 1st defendant’s guidelines in the same respect.
In response the 2nd respondent filed two counter-affidavits to the originating summons dated 8th March, 2011 containing 11 & 16 paragraphs respectively and exhibits attached. (See pages 200-213 and 248-303 of the record). The 1st respondent on 1/4/11 also filed a 14 paragraph counter affidavit with exhibits attached. (See pages 298-299 of the record).
On 1st April, 2011 the trial court heard the originating summons and dismissed same by a bench ruling. Parties were however, ordered to file and exchange pleadings and the suit was adjourned to 4th May, 2011 for hearing.
Dissatisfied with the said ruling appellant lodged an appeal to this court vide his Notice of Appeal dated 14th April, 2011 containing 5 (five) Grounds of Appeal.
In accordance with the practice of this court parties filed and exchanged briefs of argument. Appellant’s brief settled by Taiwo Kupolati Esq. was dated 31/5/11 and filed on same date. 1st respondent’s brief settled by Yomi Siwoniku Esq, was dated 24/2/12 and filed on 27/2/12 but deemed properly filed on 29/2/12. The 2nd respondent’s brief settled by Razaq Okesiji Esq. was dated 24/1/12 and filed on same date but deemed properly filed on 29/2/72. When the appeal came up for hearing the briefs were adopted by respective counsel except the 3rd respondent who did not file any brief of argument.
Appellant distilled two issues for determination in this appeal as follows:-
1. Whether the trial court was not wrong in dismissing the originating summons and thus refusing the reliefs sought therein by the appellant, despite its specific finding on the core question to the effect that the evidence given by the 1st and 2nd respondents alluding to the fact that a primary election was held, did not sufficiently convince it that a primary election was held in accordance with section 87 of the Electoral Act 2010 (Grounds 1, 2 and 3 of the Notice of Appeal dated 14 April, 2011).
2. Whether it was not improper and wrong of the trial court to have subsequently and unilaterally altered its ruling decision in chambers, and added directive that parties should file pleadings, thereby making a directive which is utterly incongruous to its previous dismissal order, at a time when the court was functus officio (Grounds 4 and 5 of the Notice of Appeal.

1st respondent formulated two issues for determination. They are:-
1. Whether the trial court was not wrong in dismissing the originating summons and thus refusing the reliefs sought therein.
2. Whether it was not improper and wrong for the trial court after having dismissed the originating summons to later alter the decision in chambers.

The 2nd respondent equally formulated two issues for determination thus:-
(i) Whether the decision of the learned trial judge to dismiss, terminate and/or refuse the prayers sought in the originating summons dated 8th March, 2011 was wrong having regard to the circumstances of this case.
(ii) Whether the learned trial judge altered her ruling after same was delivered in open court.

The two issues formulated by the appellant are apt as such I will adopt same in determining this appeal. Since the issues formulated by the 1st and 2nd respondents are similar with the ones formulated by the appellant I will treat them together.

ISSUE No 1
While arguing this issue, appellant’s counsel submitted that the trial court had full grasp of the object of the appellant’s action. The trial court was required to interpret certain enactments and also examine the question whether primary election was conducted in line with the Electoral Act.
Learned counsel contended that having correctly asserted that the issues for determination in the originating summons being ones relating to interpretation of particular enactment on whether primary election was held, any determination by way of specific finding in the trial court’s decision should be held as that court’s final pronouncement on the issue. Reference was made to the trial court’s finding on page 320 of the record. Learned counsel expressed the view that issues which are inherently controvertial as opposed to factually controversial issues, are those exactly fit for determination by originating summons. That the trial court was correct in proceeding to determine the issue, whether primary election was held in accordance with section 87 of the Electoral Act upon noting that the issue was inherently controvertial. It was argued that a court which determines that it was not sufficiently convinced that a primary election was held by the 1st respondent as required by section 87 of the Electoral Act, 2010 has given a major decision with associated effects. Learned counsel submitted further that once the trial court determined an issue it deemed “inherently controvertial” in an action begun by originating summons such determination abides and subsists until set aside on appeal. Learned counsel contended that it was plainly ludicrous or paradoxical for the trial court to have dismissed the originating summons after it had found that no primary election was held in accordance with the provisions of section 87 of the Electoral Act, 2010. That as no primary election was held, the imposition or handpicking of the 2nd respondent as a lawful candidate that stood for the senatorial election was thus wrong and void.
Counsel further argued that the trial court’s expression of fear of danger in making a finding was unfounded, as it had already found on the most critical and fundamental issue on the action, namely, that on the evidence before it, primary election was not conducted. Learned counsel noted that the nature of the reliefs sought in the originating summons was not such that was expected to “stop” the conduct of the election fixed for 2nd April, 2011 (but later conducted on 9th April, 2011) or as exaggeratedly imagined by the court. That the trial court clearly confused itself by introducing the totally unrelated issue of stopping the election or dangerously interfering with the rights of “respective parties” as grounds for discussing the originating summons. Counsel urged the court to hold that the trial court acted wrongly in dismissing the appellant’s originating summons, and thus refusing the reliefs sought therein by the appellant, notwithstanding its particular finding on the core question that no primary election was conducted as required by section 87 of the Electoral Act, 2010.
In concluding his submission in respect of this issue, counsel relied on section 15 of the Court of Appeal Act and the case of Amaechi vs. INEC (2008) All FWLR (Pt. 407) 1 at 110-111 and urged the court to invoke its inherent powers and direct the 3rd respondent to issue a certificate of Return to the appellant. That appellant was the only valid aspirant for the elective office of Senator for the Ogun East Senatorial District. That appellant was the winner of the senatorial election on the platform of the 1st respondent. That the practical aim of a consequential order is to give effect to a Judgment or order or make the principal order effectual and effective.
Reliance was placed on Inakoju vs. Adeleke (2007) All FWLR (Pt.353) 3, 207.
On the part of the 1st respondent, learned counsel summarised the argument of the respondent before the lower court. Counsel raised four basic questions that should naturally be determined from the actions of the appellant. They are:-
(a) Whether the appellant who had withdraw from the primary election can validly complain about same.
(b) Whether the appellant have any legal capacity to come to court to enforce any rights from the same primary election.
(C) Whether the lower court have jurisdiction to entertain such an action.
(d) Whether the action of the appellant is not an abuse of the court process.
Learned counsel submitted that if these questions are answered in the affirmative, the court should dismiss the whole action with substantial costs in line with section 15 of the Court of Appeal Act, 2011. Reliance was placed on A.G. Federation v. AIC Ltd (2006) SC (Pt.1) 175 at 183; Dunlop Pneumatic Tyre Company Ltd v. Selfridge (1915) AC 847 and Twaddle v. Atkinson (1861) 1b & c 392. See also Ofulu & Ors v. Itodo & Ors (2010) SCM 186 and Effiona v. CRS INEC 43 NSCQR at 346. I wish to note that counsel did not advance any argument in respect of the questions posed by him.
The response of the 2nd respondent is as contained in his brief of argument. Learned counsel submitted that proceedings to be commenced by way of an originating summons are stated in Order 3 Rules 6 and 7 of the Federal High Court Rules, 2009. Learned counsel submitted that the questions formulated for determination, the reliefs claimed and the affidavit in support are prima facie contentious and ought not to have been initiated by the originating summons procedure. The question of whether an originating summons is appropriate in commencing a suit is answered by this court in Madam Roseline O. Ejura v. Ibrahim Idris & Ors (2006) 4 NWLR (Pt.971) 442 at 560 – 561.
Counsel further contended that in determining whether a suit was properly commenced by originating summons the court has a duty to read the entire content of the originating summons to determine whether infact a suit qualifies to be instituted by that procedure. See:- National Bank of Nigeria Ltd v. Alakija (1978) 9 – 10 SC 59 and Amasike v. Registrar General C.A.C. (2010) 5-9 SC (Pt.1) 147 at 153. Learned counsel submitted that upon receipt of the originating summons the 2nd respondent raised preliminary objection to the commencement of the suit by this process but the trial judge dismissed the preliminary objection see page 229 of the record. Thereafter 2nd respondent filed two counter-affidavits to the suit (pages 200-213 and 248-303). Similarly the 1st counter-affidavit was deposed to by the 2nd respondent himself while the 2nd counter-affidavit was deposed to by Oluranti Oyebade, the Assistant secretary of the Action congress of Nigeria in Ogun state. That the 1st respondent also filed a counter-affidavit to the suit on 1st April, 2011 (pages 298-299 of the record) which was deposed by its Ogun state chairman. It was argued that by the aforesaid counter-affidavit the 1st and 2nd respondents joined issues with the appellants on at ground. Learned counsel submitted that the learned trial Judge observed that the averment by the 2nd defendant in paragraph 4 of his counter-affidavit does not sufficiently convince her that a primary election was held in accordance with the requirement of section 87 (1) or (2) of the Electoral Act, 2010 (as amended).
Counsel urged the court to note that the learned trial Judge used the word “sufficiently” which could also mean “conclusively” and that it is consistent with the findings that the defence discloses triable issues.
Counsel referred to the counter-affidavits of the Assistant secretary and the State Chairman of the party. It was argued that a political party is expected to conduct primary election by any of the methods stipulated in section 87 of the Electoral Act, 2010 and section 87(6) of the Act was complied with in this case. Counsel further submitted that the appellant having formally withdrawn from the race as shown on page 250 of the record can no longer challenge the conduct of the primary election. It is academic and an abuse of court process. Learned counsel distinguished the facts and circumstances in Amaechi v. INEC and the case at hand. In Amaechi’s case the court was called upon to decide whether there was effective substitution of one candidate for another. While in the case at hand the 2nd respondent was nominated. That appellant withdrew from the race and was never nominated by the 1st respondent.
As earlier stated, appellant commenced his action at the lower court by way of an originating summons in accordance with the provisions of Order 3 Rules 6 and 7 of the Federal High Court (Civil Procedure) Rules, 2009, Rules 6 and 7 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.
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 the 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.”
Having regard to the nature of the complaint raised by the appellant I find it necessary to first reproduce the ruling of the lower court appearing on pages 310-311 of the record for clarity and emphasis. The learned trial judge stated thus:-
“I have carefully studied the originating summons filed by the plaintiffs and the counter-affidavit filed by the 2nd defendant and find that the issues here are inherently controvertial especially as it concerns the plaintiff’s claim that no primary was held. The averment by the 2nd defendant in paragraph 4 of his counter-affidavit alluding to the fact that a Primary Election was indeed held does not sufficiently convince me that a primary Election was held in accordance with requirement of S.87 (1) or (2) of the Electoral Act 2010 (as amended).Without clear alternative proof, it would be dangerous to make a finding or findings on issues that could affect the rights of the respective parties and possibly stop an event of such magnitude and importance to be held within 21 days from now.
The issues are clearly triable as evidence would have to be adduced and considered to make a finding. The originating summons dated 8th March, 2011 is accordingly dismissed.
Accordingly, the plaintiff is ordered to file pleadings within 14 days from date hereof. The defendant is given 7 days to file their defence from the date of service of the plaintiff’s pleadings.
The matter is adjourned to 4th May, 2011 for Hearing.”
The contention of appellant’s counsel is that the learned trial judge made a specific finding that primary election was not held in accordance with S.87 of the Electoral Act 2010 as such it was wrong for the trial court to dismiss the originating summons. An appellate court is enjoined to take the whole judgment together as a single decision of the court while considering complaints relating to judgment of a trial court. The apex court made this observation in the case of Adebayo vs. A.G Ogun State (2008) 2 SCNJ 352 at 366-367. Niki Tobi JSC had this to say:-
“In order to pick faults in judgment of a trial judge an appellate court should not take paragraphs or pages in isolation or in quarantine but must take the whole judgment together as a single decision of the court. An appellate court cannot allow an appellant to read a Judgment in convenient installments to underrate or run down the Judgment.”
In line with the above pronouncement, the ruling of the court below reproduced (supra) would be read together as a single decision of the court.
In considering the ruling as a whole it cannot be said that the learned trial judge made a specific finding that primary election was not held in accordance with S.87 of the Electoral Act. The learned trial judge clearly stated in the ruling that the issues are triable as evidence would have to be adduced and considered to make a finding. The trial judge concluded, by ordering parties to file pleadings. The question now is considering the reasons given can it be said that the use of the phrase “dismissal” by the trial judge means the life of the originating summons had been terminated?
The word “dismissal” is defined in Black’s Law Dictionary Seventh Edition as:
“Termination of an action or claim without further hearing.” Dismissal can also mean striking out depending on the facts and circumstances of the case. Looking at the ruling of the court below as a whole it is my opinion that the use of the word “dismissal” by the learned trial judge was a slip. I am guided by the decision of the apex court in Ezeoke & Ors vs. Nwagbo & Anor. (1988) 3 SCNJ 37 at 45 wherein the Supreme Court stated:-
“As the judge in the statement of the case put forward by the defendants chose to use the word “admitted” rather that averred, the highest that can be said of it is that he committed a liquistic flaw, not that he was guilty of a misdirection for which an appeal should be allowed. It is noteworthy that he said:
“From the evidence before me it is my considered opinion that Ezenwaloli because of the quarrel he had with his brother Onwugbala pledged the land to the plaintiffs’ father.”
So he did not find for the pledge because of any admission but on the strength of the evidence before him. In my opinion, the use of the word admitted was a slip.”
(underlying mine for emphasis).
The trial judge could not have intended to use the word “dismissal” after stating clearly that the issues are triable and evidence would have to be taken. In other words, the matter will be transferred to the general cause list to be heard on pleadings, which would involve calling witnesses. I have no doubt that the proceedings before the trial court on 1st April, 2011 were rushed and conducted in hurry. This was because the suit was a pre-election matter which had to be handled expeditiously in order to comply with the deadline of 2.4.11 for the holding of the general-election. Given the nature of the special circumstances of the matter, the trial judge may make mistakes in the course of the proceedings. However, it is clear from decided cases that it is not every slip of a judge in his judgment that can result in the judgment being upset. For a mistake to so result, it must be substantial in the sense that it affected the decision appealed against. See Onojobi v. Olanipekun (1985) 11 SC (pt.2) 156 and Ezeoke & Ors vs. Nwagbo & Anor (supra). It is evident that Appellant was also not prejudiced by the slip.
Furthermore, it is now settled that an appellate court, looks and bases its decision, at the correctness of the decision and not necessarily, at the reason for the decision. In other words, an appellate court will not set aside the decision of a lower court which is right and must merely because the trial judge or the court below, gave wrong reasons for the decision. The paramount consideration for the appellate court is whether the decision is right and not necessarily whether the reasons are right. See L.T.P.P Ltd. vs. UBN Plc (2007) 1 WRN 117; Odukire vs. Ogunbiyi (1998) 8 NWLR (Pt.561) 339 at 350; Jikantaro & Ors v. Dantoro & 6 Ors (2004) All FWLR 390; A.G. Leventis Nig. Plc v. Akpu (2007) 46 WRN 1 at 27 and Taiwo & Ors v. Sowemimo (1982) 5 SC 60 at 74 – 75.

The next point to resolve is whether commencement of this action by originating summons was appropriate in the circumstances. In the case of National bank of Nigeria v. Lady Ayodele Alakaji & Anor. (1978) 9 – 10 SC 59 the Supreme Court enumerated circumstances under which action could be commenced by originating summons. They are:-
1. Originating summons should only be applicable in circumstances where there is no dispute or questions of fact or even the like-li-hood of such dispute.
2. Application by originating summons should never be a substitute for initiating contentious issues of fact.
3. Where the affidavit of the plaintiff leaves matters for conjecture, originating summons is not an appropriate procedure.

In determining whether a suit was properly commenced by originating summons the court has a duty to read the entire content of the originating summons. The depositions in the supporting affidavit and counter-affidavit, is of material importance in this exercise. In the instant case the learned trial judge examined the entire content of the originating summons; the reliefs claimed the affidavit in support as well as the counter-affidavits filed by the 1st and 2nd respondents. By the counter-affidavits the 1st and 2nd respondents joined issues with the appellant on all grounds. After reading all the materials placed before the court the learned trial judge observed that the averment by the 2nd defendant in paragraph 4 of his counter-affidavit does not sufficiently convince her that a primary election was held in accordance with the requirement of section 87 (1) or (2) of the Electoral Act 2010 (as amended). I seem to agree with 2nd respondent’s counsel that the learned trial judge used the word “sufficiently” which could also mean “conclusively” which is consistent with the findings that the defence discloses triable issues.
I find it convenient at this stage to examine the main affidavit and the counter-affidavits filed by the 1st and 2nd respondents to see whether the materials placed before the court disclosed triable issues or hostile proceedings. For clarity the 23 paragraph affidavit in support deposed to by the appellant read thus.
1. “I am a bona fide and financial member of the 1st defendant. My membership registration form is attached herewith as Exhibit A.
2. I have been a member of the 1st defendant for several years having been involved in the 2007 Senatorial Election as the Senatorial candidate for the Ogun State East Senatorial District of Ogun State on the platform of the 1st defendant. I, indeed, declared my intention for the elective position of Senator in Ogun East Senatorial District in respect of the oncoming April 2, 2011 general election vide duly completed Declaration of intention Form herewith attached as ‘Exhibit B’.
3. In view of the approaching April 2011 general election, the 1st defendant informed all aspirants desirous of running for elective offices on the platform of the 1st defendant in The Nation’s publication 5th January, 2011 (page 66) to “apply for Expression of Interest and Nomination Forms”.
4. Further to the above, administrative and nomination fees being N100,000.00 and N500,000.00, respectively, were demanded as conditions for qualifying as an aspirant for the nomination exercise and for partaking in the primary election fixed to be conducted on 10th January, 2011. I paid the said sum of N600,000.00 on 8th January, 2011 into First Bank of Nigeria Account No. 40620500175147 at the Allen Avenue Branch, Ikeja, Lagos belonging to Action Congress vide deposit slip No. 2234035 annexed herewith as ‘Exhibit C’. My nomination form is attached as ‘Exhibit CA’.
5. The 1st defendant expressly stated on page 61 of ‘The Nation’ of Wednesday 5th January, 2011, herein annexed as ‘Exhibit D’ and which contains the information deposed to in paragraphs 3 and 4 of this affidavit, that “all nomination forms should be returned unfailingly to the party’s State Headquarters by 12 noon of 9th January, 2011.”
6. As at 12 noon of 9th January, 2011, I was the only and sole senatorial aspirant that had duly complied with the guidelines set out in Exhibit D.
7. The 2nd defendant did not fulfill the conditions specified in the 1st defendant’s published guidelines.
8. Further to paragraph 7, I verily believe that the 2nd defendant did cease to be a qualified aspirant for all purposes having not expressed interest and paid the due fees within the time and date stated by the 1st defendant in Exhibit B.
9. I verily believe that the provisions in the 1st defendant’s Constitution and Guidelines are an enforceable and valid code for proper democratic practice as opposed to the whimsical and capricious nuances of totalitarianism and dictatorship.
10. The 1st defendant did not conduct any primary election or nomination exercise on 10th January 2011.
Neither did it invite the 3rd defendant to witness or monitor the conduct of such primary election and nomination exercise as statutorily mandated or required.
11. I was rudely dismayed, and so are many party members, that the 1st defendant nominated its candidate through neither direct primary nor indirect primary on 10th January 2011 or any other date as statutorily required.
12. Up till the time of filing nominations with the 3rd defendant the 1st defendant was yet to establish to the plaintiff that it in fact conducted either direct or indirect primary for the purpose of nominating a senatorial aspirant as the 1st defendant’s flag bearer for the Ogun East Senatorial District.
13. Further to the preceding paragraphs, without conducting any direct or indirect primary election, the 1st defendant forwarded the 2nd defendant’s name to the 3rd defendant as its nominated candidate for the Ogun East Senatorial District and as its flag bearer in the senatorial election of April 2011.
14. I verily believe that by all factual account, the 2nd defendant purported nomination was an act of wilful imposition by and on the 1st defendant in flagrant breach of applicable statutory stipulations and recognized democratic process which the 1st defendant adopts as the pillars of its political policy.
15. Flabbergasted and troubled at the apparent negation of the statutory conditions for the nomination exercise or the conduct of primary election and the contemptuous disregard for the prescribed Guidelines and Constitution of the 1st defendant. I, in line with the Constitution of the 1st defendant which encourages resolution of complaints within the party as a first step before resort to litigation, wrote and addressed my complaint to the 1st defendant and its chairman through a letter dated 20 January, 2011
16. My said letter of 20 January, 2011 emphasized in Paragraph 5 thus:
“As at the time of writing this protest, the party leadership in Ogun state has failed to conduct any primary election, yet the rumour is rife that the name of a particular aspirant has been forwarded to the National secretariat of a party for onward transmission to INEC! This is not only an unconstitutional act; it is a flagrant violation of our party’s Constitution, the extant Electoral Act. The Guidelines for the conduct of the primary elections earlier referred to. We should not publicly give the guidelines, rules and directives and whimsically violate same, it is capable of portraying our party as one that preaches due process, rule of law, constitutionalism and does the direct opposite I earnestly hope and believe that this matter will be expeditiously handled and resolved because as you know TIME IS OF THE ESSENCE SIR.”
17. The letter of 20 January 2011 was copied to and served on the principal officers and leaders of the 1st and 3rd defendants, to wit: National chairman, National secretary National Legal Adviser, Otunba Niyi Adebayo (former Governor of Ekiti state), Aremo Segun Osoba (former Governor of Ogun State), Independent National Electoral commission (INEC) – 3rd defendant herein.
The letter is marked “Exhibit E” and the TNT courier coupons, proofs of service, are attached as Exhibit F.
18. Despite my letter of 20 January, 2011 (Exhibit E), the 1st defendant neither acknowledged it nor took action on the subject of my complaints and this spurred me to direct my solicitors to write to the 3rd defendant vide a letter of 8th February, 2011 attached herewith as Exhibit F and copied to principal officers of the 3rd defendant and served on both it and them vide courier coupons numbers 9533967, 9533968, 9533969 and 9533970 annexed as ‘Exhibit G’
19. My solicitors plainly demanded in Exhibit F that the 3rd defendant –
“redress the injustice done to our client (plaintiff) by declaring him as the duly recognized unopposed candidate of the party for the forthcoming 2nd April, 2011 Ogun East Senatorial Election as he is the only aspirant that complied with and fulfilled the guidelines as spelt out by the party for the purpose of nominating candidates for election into National Assembly.”
20. The 3rd defendant neither acknowledged the said letter nor took appropriate action to investigate and decide on my complaint despite the fact that it was neither invited to any primary that led to the nomination of the 3rd defendant not did it participate in any such primary that led to the 2nd defendant’s name being forwarded to it. The copy of the Constitution of the 1st defendant is annexed herewith as Exhibit K.
21. I verily believe that it is of necessity that the court intervenes in this matter, with a view to correcting the wrong, absurd, illegal, unconstitutional and improper nomination procedure/method that yielded up the 2nd defendant as the nominated candidate of the 1st defendant.
22. It is in the interest of justice that the reliefs sought herein be granted.
23. I make this affidavit in good faith.”

The 11 paragraph counter-affidavit deposed to by the 2nd respondent appearing on pages 200-201 of the record also read as follows:-
1. “That I am the 2nd defendant in this suit.
2. That I am a member of the Action Congress of Nigeria in Ogun State and the Senatorial candidate of the party for Ogun East Senatorial District.
3. That in line with the directive of my political party I obtained and submitted to the party secretariat declaration of Intention and Nomination Forms copies which are annexed and marked herewith as Exhibit A and B respectively
4.That I was nominated by the Action congress of Nigeria as its Senatorial candidate for Ogun East Senatorial District in line with the constitution of the party’s letter dated 27th January, 2011 forwarding its Senatorial candidates to the 3rd defendant marked and attached herewith as Exhibit C.
5. That the 3rd defendant being satisfied with the selection process of my political party accepted the candidates nominated to it by the Action Congress of Nigeria Copy of the INEC list of candidates is marked and attached herewith as Exhibit D.
6. That to the best of my knowledge the Action Congress of Nigeria did not violate the principles of internal democracy in the nomination process.
7. That I was given nomination form after paying the prescribed fees to the party and I also participated in the screening and primary conducted by the party.
8. That the plaintiff did not submit his nomination form as at the 9th January, 2011 as his nomination form was only notorised on the 10th day of January, 2011.
9. That the Senatorial Election will hold throughout Nigeria on the 2nd day of April, 2011 and this suit is intended to frustrate my campaign arrangements.
10. That it is in the interest of justice to refuse the application for injunction.
17. That I depose to this affidavit in good faith.”

Similarly the counter affidavit to the originating summons dated 8th March, 2011 deposed to by the Assistant State Secretary of the Action Congress of Nigeria containing 16 paragraphs appearing at pages 248-249 of the record are reproduced here under:
1. “That I am the Assistant State Secretary of the Action Congress of Nigeria, Ogun State.
2. That I am conversant with facts of the case and I have the consent of the State Executive Committee of the Action Congress of Nigeria, Ogun State and that of the 2nd Defendant to depose to this affidavit.
3. That the 2nd defendant is a bona fide member of the Action Congress of Nigeria.
4. That the 2nd Defendant emerged the candidate of the Action Congress of Nigeria for the Ogun East Senatorial District, Ogun State from the primary conducted by the Party.
5. That the plaintiff who is also a member of the party withdrew from the senatorial race. Copy of the letter of withdrawal is attached and marked as Exhibit A.
6. That upon payment of prescribed fees the 2nd defendant was issued with expression of interest and Nomination forms by my office.
7. That it is not true that the plaintiff submitted his nomination form to the Action Congress of Nigeria on 9th January, 2011 as a careful perusal of the Nomination form shows that it was only notorised on the 10th January 2011 on which date he withdrew his candidate from the Ogun East Senatorial Race.
8. That the plaintiff did not present himself for primary.
9. That the 2nd defendant returned duty completed declaration of intention and nomination forms to the party. Copy of the forms are marked and attached herewith as Exhibit B and C.
10. That the 2nd Defendant’s name was forwarded to the 3rd defendant by the Action Congress of Nigeria as the party’s senatorial candidate for Ogun East Senatorial District. Copy of the party’s letter dated 27th January 2011 to the 3rd defendant is attached and marked herewith as Exhibit D.
11. That the name of the 2nd defendant was accepted by the 3rd defendant and published by the 3rd defendant.
12. That Exhibit K attached to the Originating summons is the Constitution of the defunct Action Congress and not the constitution of the Action Congress of Nigeria. A copy of the constitution of the Action Congress of Nigeria is attached and marked as Exhibit E.
13. That the emergence of the 2nd defendant as senatorial candidate was in line with democratic principles and the 3rd defendant had proper notice of the nomination exercise.
14. That this action is an abuse of the court process and same is calculated to cause disaffection among party members.
15. That it is in the interest of justice of (sic) dismiss this suit.
16. That I depose to this counter affidavit in good faith.”
The 14 paragraph counter-affidavit to originating summons dated 08/03/2011 deposed to by chairman of Action Congress is reproduced thus:-
1. That I am the Chairman of the Action Congress of Nigeria in Ogun State, the Chairman of the Action Congress of Nigeria Ogun State Executive Committee and also the Chairman of the Action Congress of Nigeria Ogun State Working Committee.
2. That by virtue of my position, I am conversant with this matter.
3. That by virtue of the Action Congress of Nigeria Constitution i.e, Section 7.11(b) “the State Executive Committee of the Party shall have the power to organize and supervise Nomination of Candidates to State and National Assembly elections”. (A copy of which is hereby attached and marked Exhibit “A”).
4. That the Action Congress of Nigeria Ogun State organized and conducted a Congress in which all positions of the party for the General Election were vied for in line with Section 87 of the Electoral Act 2010.
5. That I am aware that the Applicant applied for Nomination under the Action Congress of Nigeria Ogun State in which he duly filled a form and was also screened for the position. (Copies of the Nomination forms are hereby attached and marked Exhibit “B’).
6. That the Plaintiff/Applicant was not the only candidate for the position of Senator of Ogun East Senatorial District. Sefiu Adegbenga Kaka. Babatunde Olokun were also aspirants for the position of Ogun East Senatorial seat.
7. That after the screening, Senator Adegbenga Kaka emerged the panelists’ favoured candidate.
8. That the party in an attempt to avoid internal disputes and strife called all aspirants and advised them to step-down for the favoured candidate. This they all agreed to do.
9. That as a result of the discussion mentioned in the above paragraph B, the Plaintiff/Applicant also at a time withdrew his intention to be considered for nomination as candidates under Action Congress of Nigeria Ogun State. (Copy of his withdrawal letter is hereby attached and marked Exhibit “C”).
10. That the withdrawal of all other aspirants made Sefiu Adegbenga Kaka the ONLY aspirant.
11. That on Tuesday, January 11, 2011, the party convened a Special Congress to confirm the nomination of Sefiu Adegbenga Kaka as the Party Candidate for the position of Ogun East Senatorial Seat. This is in line with Section 87 (6) Electoral Act 2010.
12. That the Party held its primary elections in accordance with the Electoral Act and which was acceptable to all Party members.
13. That Sefiu Adegbenga Kaka paid the prescribed fees on the due date in accordance with the Party guidelines.
14. That I swear to this affidavit in good faith.”

After a careful perusal of the entire affidavit evidence, I am of the humble view that the observation of the learned trial judge that the issues are clearly triable is correct. The dispute is not solely limited to construction and interpretation of enactment but involves dispute on questions of fact.
The issue as to whether the appellant had withdrawn from the race leaving the 2nd respondent as the sole candidate has to be resolved by oral evidence. 2nd respondent also claimed that he emerged winner by special congress as provided by S. 87 (6) of the Electoral Act. There are other facts in the affidavit and counter-affidavit which are irreconcilable in conflict. It is the law that in such situation oral evidence shall be given. See Falobi vs. Falobi (1976) 9-10 SC.1, 1976 1 NMLR 169; Eze vs. Attorney General Rivers State (1999) 9 NWLR (pt.619); Chigbu vs. Tonimas (Nig.) Ltd (1999) 3 NWLR (pt.593) 115 and Gbadamosi v. Alete (1998) 17 NWLR (pt.578) 402.
I wish to note that at the time the learned trial judge dismissed the Preliminary objection of the 2nd respondent challenging the procedure adopted by the appellant, the counter-affidavits of the 1st and 2nd respondents were not before the court. The decision was solely based on what the appellant presented before the court. I will make no further comment since the dismissal is subject matter of an appeal pending before this court in Appeal No. CA/I/123/11.
Where the court finds an originating summons to be inappropriate, the proper order to make is one ordering the parties to file pleadings and come by way of writ of summons and not to dismiss or strike out the suit. See the decision of this court in Ejura v. Idris (2006) All FWLR (pt.318) 646. (2006) 4 NWLR (pt. 971) 538. This is the stand taken by the learned trial judge in this case at hand, As earlier stated considering the entire ruling, it could be safely accepted that the use of the word “dismissal” is a slip. I am therefore of the firm view that the order made by the learned trial judge that parties should file pleadings was proper in the circumstances. It cannot be faulted. Issue one is accordingly resolved against the appellant.

Issue 2
The contention of the appellant is that the ruling of the trial court on pages 320-321 of the record of Appeal suffers the malaise of being substantially modified by the trial judge outside the open court. That the ruling by the trial judge which was read in the open court on 1st April, 2011 ended with the words:
“The originating summons dated 8th March, 2011 is accordingly dismissed.”
It was contended that as borne out by the affidavit of Oluwakemi way; Legal practitioner, Sworn to in the registry of the Federal High Court, Abeokuta (see pages 318 and 319 of the record) on 27th April, 2011, the trial court included additional statement which did not form part of the decision in the open court. The additional statement read thus: “Accordingly, the plaintiff is ordered to file his pleadings within 14 days from date hereof. The defendant is given 7 days to file their defence from the date for the service of the plaintiff’s pleadings. The matter is adjourned to 4th May, 2011 for hearing,” (See page 321 of the record)
It was further argued that the addition was not intended to correct clerical errors or bring the case in line with the justice of the case. That grain of judicial authorities establishes that delivery of judgment in chambers out of the full glare of the public is unconstitutional and vitiates the entire proceedings. Reliance was placed on Mikailu v. State (2001) 1 NWLR (pt. 715) 469 48 and N. A. B Ltd. Vs. Barri Eng. Nig. Ltd. (1995) 8 NWLR (Pt.413) 257.
In response to this issue, 1st respondent’s counsel submitted that on the 1st of April, 2011 when the ruling of the lower court was read all counsels to the parties were in court. That the ruling as shown on pages 320-321 of the record of appeal was read in the open court as it is in the record of appeal. Learned counsel maintained that it was not altered. It was argued that since the appellant is asserting alteration he should prove by providing alternative ruling/judgment or depose to an affidavit to show the altered fact in the judgment. He urged the court to dismiss the appeal with substantial costs.
2nd respondent on the other hand argued in response that the ruling of the court was not altered or varied after it was delivered in open court.
That counsel on both sides were told to agree on date before the court adjourned the case to 4th May, 2011. It was submitted that parties are bound by the printed record of court. That while an affidavit may be considered to show missing facts in the record of proceeding it will be of no assistance to establish that the ruling or judgment of court is altered or varied after it was read in open court.
It was further contended that a party who accused the court of alteration or fraud of its ruling will do well to present two versions of the ruling or concrete evidence of alteration before the appellate court. That this has not been done. That the proceedings were conducted under extreme pressure and in the circumstances of the limited time which the court had to conclude the case innocent mistakes by the parties and the court is excusable. That directive on parties to file and exchange pleadings shows that what was intended was not a dismissal of the suit. That appellant was not prejudiced by the slip. He urged the court to resolve the issue in favour of the 2nd respondent.
What this court is being called upon to decide in the issue under consideration is whether the learned trial judge substantially modified the ruling delivered on 1st April, 2011 outside the open court. The substance of the complaint was that the trial judge included additional statement which did not form part of the decision in the open court. Appellant identified the additional statement thus: –
“Accordingly, the plaintiff is ordered to file his pleadings within 14 days from date hereof. The defendant is given 7 days to file their defence from the date for the service of the plaintiffs, pleadings. The matter is adjourned to 4 May, 2011 for hearing’. (see page 321 of the record).
I have carefully perused the record of appeal. There is no other record of what happened in court on the 1st of April, 2011 either kept by the appellant’s counsel or from any other source to fault the record of the court as to what took place in the court on the 1st of April, 2011 and what allegedly took place outside the open court. The learned trial judge was not served with the appellant’s brief of argument or ground 5 of the notice of appeal upon which the issue was predicated to give the learned trial judge opportunity to defend himself. The law is well settled that the record of proceedings of a court is presumed by law to be correct until the contrary is proved. A party who challenges the correctness of the record of proceedings must swear to an affidavit setting out the facts or part of the proceedings omitted or wrongly stated in the record. Such affidavit must be served on the trial judge and/or on the Registrar of the court who would then if he desires to contest the affidavit, swear to and file a counter affidavit.
In the instant case one Oluwakemi way a Legal Practitioner deposed to an affidavit which was filed on 27/4/11 appearing at pages 318- 319 of the record, but same was not served on the learned trial judge and/or the registrar of the lower court. See Ehigimetor Ehikiwya & Anor v. Commissioner of Police (1992) 4 NWLR (Pt.233) 57 at 70; Nwanko v. Abazie (2003) 12 NWLR (Pt.834) 381 at 420-421; Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (pt.943) 634 at 646; Sommer v. F.H.A. (1992) 1 NWLR (pt.219) and Texaco Panama inc. V. Shell P.D.C. Nig. Ltd (2002) 5 NWLR (pt.759) 209 at 234.

The court and the parties are bound by the record of appeal as certified and is presumed correct unless the contrary is proved. The law is well settled that where there is no evidence to the contrary, things are presumed to have been rightly and properly done. See B.A Shitta Bey v. Attorney General of the Federation & Others (1998) 10 NWLR (pt.570) 392 at 426 and Ogbuanyinya v. Okudo (No.2) 4 NWLR (pt.146) 551 at 570.
There is absolutely no evidence to fault the printed record of appeal.
Furthermore, in so far as the learned trial judge was not given any opportunity to be heard on the complaint made by the appellant’s counsel, I think the complaint and/or accusation is incompetent and is therefore discountenanced.
n the final analysis, I am of the view that this appeal is unmeritorious and should be dismissed. The appeal is dismissed and the ruling of the lower court delivered on 1st April, 2011 in suit No. FHC/AB/CS/14/2011 is accordingly affirmed. Parties shall bear their own costs.

STANLEY SHENKO ALAGOA, J.C.A. OFR.: I read before now the lead judgment just delivered by my learned brother Mshelia (J.C.A.). I agree with the reasoning and conclusion reached therein. The appeal is unmeritorious and I also dismiss same. I affirm the ruling of the lower court delivered on 1st April 2011 in Suit No. FHC/AB/CS/14/2011 and abide by the order on costs as contained in the lead judgment.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in advance the succinct judgment just pronounced by my learned brother, Mshelia, J.C.A., in which I concur with these few words of mine.
The Ruling of the court below at pages 310-311 of the record of appeal must be read together as a single decision of that court – See Adebayo v. Attorney General of Ogun State (2008) 2 S.C.N.J. 352 at 366-367 thus –
“In order to pick faults in a judgment of a trial judge an appellate court should not take paragraphs or pages in isolation or in quarantine but must take the whole judgment together as a single decision of the Court. An appellate Court cannot allow an appellant to read a judgment in convenient instalments to underrate or run down the judgment…”
Looking at the Ruling of the court below as a whole, the phrase “dismissed” used by it respecting the life of the originating summons was a slip not flowing from its reasoning that evidence had to be taken to resolve the triable issues on the originating summons and could not have meant the dismissal of the action as strenuously contended by the appellant.
It is for this reason and the abler reasons given in the judgment delivered by my learned brother, Mshelia, J.C.A., that I too find no merit in the appeal and hereby dismiss it. I abide by the consequential order in the said judgment.

Appearances

Taiwo Kupolati esq. For Appellant

AND

Yomi Siwoniku esq. for 1st Respondent
Razaq Okesiji esq. with A.O. Kaka for 2nd respondent.
Mrs. Bolanle Babajide for 3rd Respondent. For Respondent