ATINUKE RAIMOT BALOGUN v. ALL PROGRESSIVES CONGRESS (APC) & ANOR (2019)

ATINUKE RAIMOT BALOGUN v. ALL PROGRESSIVES CONGRESS (APC) & ANOR

(2019)LCN/12726(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 20th day of February, 2019

CA/A/14/2019

RATIO

ACTION: ORIGINATING SUMMONS

“In essence, originating summons is a procedure which is used in cases where the facts are not in dispute or there is no likelihood of their being in dispute. Originating Summons is also reserved for issues like the determination of questions of construction and not matters of such controversy that the justice of the case could demand the setting of pleadings. Originating Summons, therefore are not suitable for hostile proceedings where the facts are seriously in dispute.”PER STEPHEN JONAH ADAH, J.C.A

APPEAL: WHETHER A WRIT WILL AVAIL AN ORIGINATING SUMMONS

“The law is settled that where facts are in dispute or riotously so, an originating summons procedure will not avail a plaintiff who must come by way of writ of summons. See the case ofDin v. Attroney-General of the Federation (1986) 1 NWLR (Pt. 17) 471; Obasanya v. Babafemi (2000) 15 NWLR (Pt. 689) 1; Nigerian Breweries Plc v. Lagos State Internal Revenue Board (2002) 5 NWLR (Pt. 759) 1; Alhaji Alubankudi v. Attorney-General of the Federation(2002) 17 NWLR (Pt. 796) 338; Hon. Muyiwa Inakoju & V. Hon Abraham Adeolu Adelek (Speaker) & 29 Ors. ; (2007) 4 NWLR(PT. 1025) ; Keyamo v. House of Assembly, Lagos State (2002) 18 NWLR (Pt. 799) 605; Famfa Oil Limited v. Attorney-General of the Federation (2003) 18 NWLR (Pt. 852) 453.” PER STEPHEN JONAH ADAH, J.C.A

NON-JOINDER: WHERE A COURT FIND OUT THERE WAS NON- JOINER OF A NECESSARY PARTY

“It is well established in our laws that when a Court in any proceeding find that there was non-joinder of a necessary party the Court may in the interest of justice take steps to: –
1. To remit the case for re-trial
2. To strike out the action if a re-trial would necessitate extensive and or complicated amendments to write and statement of claim to reflect the joinder.
3. To join for purpose of the appeal, the person who ought to have been joined in the trial Court.
4. To hold that the person complaining that he ought to have been joined was not such a necessary party and that the non-joinder would not defeat the cause or matter. See Akpata, JSC, in Okoye v. Nigeria Construction and Furniture Co. Ltd & Ors. (1991) 6 NWLR (Pt. 199) 501.” PER STEPHEN JONAH ADAH, J.C.A

JUSTICES

ABDU ABOKI Justice of The Court of Appeal of Nigeria

STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

Between

ATINUKE RAIMOT BALOGUN Appellant(s)

AND

1. ALL PROGRESSIVES CONGRESS (APC)
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment):

This is an appeal against the decision of the Federal High Court Abuja Division in Suit No: FHC/ABJ/CS/1167/2018 delivered by Nyako, J. on 21st December, 2018.

The Suit was commenced at the lower Court by the appellant as plaintiff through an Originating Summons dated 18th day of October, 2018. The appellant’s claim involved four questions and five consequential reliefs for determination. The questions and the reliefs are couched as follows:

QUESTIONS:
1. Whether, having regard to the relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), the Electoral Act, 2010 (as amended) and the relevant provisions of the 1st Defendant’s Constitution and Guidelines; and the Regulation for the conduct of political party primaries of the Independent National Electoral Commission, the 1st Defendant’s Ojo Constituency 1 of the Lagos State House of Assembly Primary election purportedly held on the 6th day of October, 2018 in Lagos State is unconstitutional, unlawful, null and void.

2. Whether this Honourable Court ought to nullify the 1st Defendant’s Ojo Constituency 1 of the Lagos State House of Assembly primary election purportedly held on the 6th day of October, 2018 in Ojo Constituency of the Federal Republic of Nigeria, 1999 (as altered), the Electoral Act, 2010 (as amended) and the relevant provisions of the Constitution of All Progressives Congress, 2014 (as amended), the 1st Defendant’s Guideline for the Nomination of Candidates for the 2019 General Elections and the Regulation for the Conduct of political Party Primaries of the Independent National Electoral Commission same being unconstitutional, unlawful, null and void.

3. Whether this Honourable Court ought to restrain the 2nd Defendant from giving any recognition to the outcome of the said Ojo Constituency 1 of Lagos State House of Assembly primary election of the 1st Defendant held on the 6th day of October, 2018 in Ojo Constituency 1 of Lagos State same having been conducted in violation of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), the Electoral Act, 2010 (as amended) and the relevant provisions of the Constitution of All Progressive Congress 2014 (as amended) and the Regulation for the Conduct of Political Party Primaries of the Independent National Electoral Commission.

4. Whether this Honourable Court ought to restrain the Defendants from relying on or using the purported results of the 1st Defendant’s purported Ojo Constituency 1 of Lagos State House of Assembly Primary election held on the 6th day of October, 2018 in Ojo Constituency 1 of Lagos State for the purpose of nominating the 1st Defendant’s House of Assembly candidate for Ojo Constituency 1 of Lagos candidate in the forthcoming general election scheduled to hold on the 2nd day of March, 2019 or any other date as may be announced by the 2nd Defendant.

RELIEFS:
1. A declaration that the 1st Defendant’s Ojo Constituency 1 of Lagos State House of Assembly primary election purportedly held on the 6th day of October, 2018 in Lagos State in flagrant violation of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), the Electoral Act, 2010 (as amended) and the relevant provisions of the Constitution of the 1st Defendant, the 1st Defendant’s Guidelines for the Nomination of candidate for the 2019 General Elections and the Regulation for the conduct of political party primaries of the Independent National Electoral Commission is unconstitutional, unlawful, null and void.

2. A declaration that it is ultra vices the 1st Defendant to hold and organize the Ojo Constituency 1 of Lagos State House of Assembly primary election held in Ojo Local Government, Lagos State on the 6th day of October, 2018 without having given a prior 21-day notice of its primaries to the Independent National Electoral Commission (the 2nd Defendant) indicating that a direct method of primary election shall be used.

3. An order of this Honourable Court nullifying the 1st Defendant’s Ojo Constitution 1 of Lagos State House of Assembly primary election held on the 6th day of October, 2018 in Ojo Local Government, Lagos State same having been conducted in flagrant violation of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), the Electoral Act, 2010 (as amended) and the relevant provisions of the Constitution of All Progressives Congress, 2014 (as amended), the 1st Defendant’s Guidelines for the Nomination of Candidates for the 2019 General Elections and the Regulation for the Conduct of Political Party Primaries of the Independent National Electoral Commission.

4. An Order restraining the 2nd Defendant from according any recognition to the outcome of the said 1st Defendant’s Ojo Constituency 1 of Lagos State House of Assembly primary election of the 1st Defendant held on the 6th day of October, 2018 in Ojo Local Government, Lagos State same having been conducted in violation of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), the Electoral Act, 2010 (as amended), the relevant provisions of the Constitution of All Progressives Congress, 2014 (as amended), the 1st Defendant’s Guidelines for the Nomination of candidate for the 2019 General Elections and the Regulation for the conduct of political party primaries of the Independent National Electoral Commission.

5. An Order of this Honourable Court restraining the Defendants from relying on or using the purported results of the 1st Defendant’s purported Ojo Constituency 1 of the Lagos State House of Assembly primary election held on the 6th day of October, 2018 in Ojo Local Government, Lagos State for the purpose of nominating the 1st Defendant’s House of Assembly candidate for Ojo Constituency 1 of Lagos State in the forthcoming general election scheduled to hold on the 2nd day of March 2019 or any other date as may be appointed by the 2nd Defendant.

At the lower Court, the 2nd Respondent, by preliminary objection dated the 12th day of November, 2018 and filed on the same date objected to the competence of the suit on the ground inter alia that

a. the suit, commenced by Originating Summons, was wrongly constituted
b. lack of locus standi in the Plaintiff/Appellant
c. lack of jurisdiction on the ground that the suit queries internal affairs of the 1st Respondent; and
d. absence of cause of action.”

The lower Court heard the preliminary objection together with the substantive suit and on the 21st day of December, 2018; delivered its judgment wherein it struck out the suit of the Appellant on the ground that the suit was wrongly commenced by Originating Summons when facts are in dispute and failure to join the purported winner of the primary election.

Aggrieved by the decision, the appellant filed her Notice of Appeal on the 24th day of December, 2018 containing (sic) grounds of appeal.

The record of appeal was compiled and transmitted on the 8th day of January, 2019. The Appellant’s Brief of Argument was filed on 9th January, 2019. The 1st Respondent’s Brief was filed on 21/01/2019 but deemed 21/01/2019. The 2nd Respondent’s Brief was filed on 23/01/2019 and deemed duly filed and served on 24/01/2019. The appellant filed his reply brief to the 1st Respondent’s Brief in response to the 2nd Respondent’s Brief was filed 23/01/2019 and deemed 24/01/2019.

At the hearing of this appeal on 24/01/2019, the learned counsel for the appellant adopted his briefs and urged the Court to allow the appeal. The 1st Respondent also adopted his own brief and urged the Court to dismiss the appeal. The 2nd Respondent in his own case adopted his brief of argument and urged the Court to dismiss the appeal.

The appellant distilled three issues for determination. These issues are couched as follows:

1. Whether, rather than ordering a conversion to Writ, the lower Court was right in striking out the Appellant’s case on the ground that same was commenced by way of Originating Summons and that facts were highly in contention that cannot be resolved by documents. (Grounds 1 and 2 of the Notice of Appeal).

2. Whether non-joinder of perceived winner of the primary election subject matter of the Appellant’s Originating Summons was sufficient to defeat the entire suit more so that the issue was raised suo motu by the learned trial Judge. (Grounds 3, 4 and 5 of the Notice of Appeal).

3. Whether the lower Court did not err in law when it struck out the suit of the plaintiff based on the preliminary objection of the 2nd Respondent without pronouncing on the substantive issues before the Court. (Grounds 6 of the Notice of Appeal).

The 1st and 2nd Respondents adopted the three issues distilled by the appellant as the issues to be determined in this appeal. Since the parties are united in identifying the issues, the three issues identified by the appellant. The three issues are set down for consideration by this Court and they shall be taking together for convenience.

Issues For Determination:

The issues are in summary whether the lower Court was right to strike out the suit instead of converting the originating summons to writ; whether non-joinder of a party was fatal; and whether the lower Court was in error for striking out the suit on preliminary objection rather than going into the merit.

The appellant in his argument on the issues relied on the decisions of this Court in the cases of PDP v. Abubakar (2007) 3 NWLR (Pt. 1022) 515, 541-542, Incorporated Trustees of the Catholic Diocese of Ekiti State v. Att. Gen. Ekiti State & Anor (2018) LPELR – 43510 (CA), Anagwu v. INEC & Ors. (2010) LPELR – 9127 (CA). He further relied on the cases of Dapianlong v. Lalong (2007) 5 NWLR (Pt. 1020) 199, Osundade v. Oyewumi (2007) All FWLR (Pt. 368) 1004, Falobi v. Falobi (1976) 9 – 10 SC. 11. He submitted that the trial Court in striking out the suit occasioned a miscarriage of justice as the appellant cannot recommence the action due to the statute of limitation.

He urged this Court to overrule the decision of the lower Court and hear this matter on the merit in the interest of justice. The learned counsel for the appellant further contended that if the lower Court had carefully looked at the documents before the Court, the Court would have found otherwise. That there are no facts in dispute that could not be resolved by documentary evidence. The learned counsel in his brief x-rayed the paragraphs of the affidavit in support and the supporting documents annexed to the claim of the appellant and urged the Court to hold that the suit was properly originated by way of Originating Summons and urged the Court to act under Section 16 of the Court of appeal Act to hear this matter and determine the claim of the appellant to avoid injustice.

The 1st Respondent, in her brief argued that the lower Court was correct to have struck out the appellant’s suit. That the position of the law is that the Originating Summons Procedure is intended to be used in circumstances involving the construction and interpretation of enactment and documents. The learned counsel for the 1st Respondent relied on the case of National Bank of Nigeria v. Alakija (1978) 9 – 10 SC 39, 71. He relied also on the cases of Doherty vs. Doherty (1964) 1 All NLR 299; Olumide vs. Ajayi (1997) 8 NWLR (Pt. 517) 433 at 433 at 442 – 443 and Anatogu vs. Anatogu (1997) 9 NWLR (Pt. 519) 49 at 70 – 71. He pointed out that the principle in all these decisions is that originating summons may only be used in initiating proceedings to obtain declarations or decision of Court in the construction or interpretation of documents, instruments or statutory provisions in circumstances where there is no dispute on question of facts or the likelihood of such dispute. Put differently, where the facts in issue between the parties involve matters of serious controversy that the justice of the case would demand the settling of pleadings, originating summons cannot be applicable. He relied further on the cases of Michael vs. Mima Projects Ventures Ltd (Pt. 303) 239 at 254 H-355D.

He referred the Court to pages 1 – 143 of the record of appeal to canvass that there are contentious statements of fact made by the plaintiff. That the facts were roundly countered by the 1st Defendant who also stated that the Appellant did not even participate in the said primaries. See pages 144 – 159 of the Record of Appeal. The Appellant filed no further affidavit with respect to the 1st Defendant’s allegations and somehow expected the trial Court to rule in her favour based on what she filed. The facts were thereof uncontroverted and admitted.

See FRN v. Abacha (2008) 5 NWLR (Pt. 1081) 634 at p. 6556, Para. G. He contended also that the originating process was therefore fundamentally defective and could not be cured even by an order for parties to file pleadings. On this, we rely on the judgment of this Honourable Court in Victoria Abe & Anor v. Skye Bank Plc & Ors Unreported CA/L/1114/10. The learned counsel in his brief pointed out that the appellant was not even asking to be declared winner of the said primaries (this is quite understandable given that she did not participate in same), rather, she wanted the primaries cancelled, thus depriving the 1st Defendant of a candidate in the 2019 elections. That it is even more galling that the appellant wanted these contentious reliefs decided via an Originating Summons.

He urged the Court to hold that the defective Originating Process had denied the Court jurisdiction to entertain the case.

The 2nd Respondent’s argument is similar to that of the 1st respondent. 2nd Respondent canvassed also that the appellant’s suit at the lower Court was fundamentally defective thereby robbing the lower Court of jurisdiction. He urged the Court to uphold the position of the lower Court striking out the claim of the appellant.

Now it is essentially important to start by saying that the law creates avenues of originating proceedings in a Court. One of such avenues is the Originating Summons. Originating Summons as a process is not meant for all manner of proceedings. Originating Summons is available to any person claiming interest under a deed, will or other written instrument whereby he will apply by originating summons for the determination of any question of construction arising under the instrument for a declaration of his interest. It is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the affidavits of the parties to the suit. In such a situation, there is no serious dispute as to facts but what the plaintiff is claiming is the declaration of his rights.

The law is settled that where facts are in dispute or riotously so, an originating summons procedure will not avail a plaintiff who must come by way of writ of summons. See the case ofDin v. Attroney-General of the Federation (1986) 1 NWLR (Pt. 17) 471; Obasanya v. Babafemi (2000) 15 NWLR (Pt. 689) 1; Nigerian Breweries Plc v. Lagos State Internal Revenue Board (2002) 5 NWLR (Pt. 759) 1; Alhaji Alubankudi v. Attorney-General of the Federation(2002) 17 NWLR (Pt. 796) 338; Hon. Muyiwa Inakoju & V. Hon Abraham Adeolu Adelek (Speaker) & 29 Ors. ; (2007) 4 NWLR(PT. 1025) ; Keyamo v. House of Assembly, Lagos State (2002) 18 NWLR (Pt. 799) 605; Famfa Oil Limited v. Attorney-General of the Federation (2003) 18 NWLR (Pt. 852) 453.

In essence, originating summons is a procedure which is used in cases where the facts are not in dispute or there is no likelihood of their being in dispute. Originating Summons is also reserved for issues like the determination of questions of construction and not matters of such controversy that the justice of the case could demand the setting of pleadings. Originating Summons, therefore are not suitable for hostile proceedings where the facts are seriously in dispute.

Unlike pleadings which do accompany a writ of summons, once parties to an originating summons have exchanged their processes filed, they are not at liberty to adduce oral testimonies in proof of the depositions in their respective affidavit and counter-affidavit- the contents of the two are printed or documentary evidence which must not be added to or removed therefrom. Since no oral testimony is allowed, then demeanour of the parties and/or their witnesses plays no part in the adjudication. All the judex, be at the trial Court or the appellate Court need do is to deduce inference there from or evaluate them. Seized of such processes, it seems to me that a judex will be ready to proceed to the hearing and determination of the suit. Dapianlong & Ors. V. Dariye & Anor. (2007) 8 NWLR (Pt. 1036) 332.

A careful look at the Questions sought to be determined in the instant case will show that the questions are too fluid. They do not have specific particulars. No section or paragraph of the laws was cited. Questions asked I must emphasize are not meant to be vague, hypothetical or moot as the Court cannot veer into that. The questions must be linked with the cause of action and the resolution of same to redress the grievance of the plaintiff. It is admittedly right and true that questions posed must not, only flow with the real issue at stake, the questions must not clash with the facts in the affidavit but sync with the facts to convey the essence and the import of the Originating Surnmons. That is why Originating Summons cannot be taken out where facts are in conflict. It must be emphasized that it is not the filing of a counter affidavit to oppose the claims in an Originating Summons that make such proceedings contentious or result in dispute facts.

Even where no counter affidavit was filed or where counter affidavit was filed but ignored by the trial Court, as in the lost out case, the nature of the claims and the facts deposed in the affidavit in support of the claims in the originating summons are enough to disclose disputed facts and hostile nature of the proceedings. See Mohammed JSC in Ossai v. Wakwah & Ors. (2006) 4 NWLR (Pt. 969) 208.

Similarly, in the case of Gbileve & Anor. V. Addingi & Anor (2014.) LPELR – SC 193/2012, the Supreme Court held Per Akaahs, JSC as follows:

“Where proceedings in a Court are by affidavit evidence it is important that conflicts in such affidavits are not glossed over. The Court is enjoined to look at the nature of the conflict. When facts are deposed in an affidavit the purpose of a counter affidavit is to contradict those facts and not to merely set up a distinct facts as defence. Where the conflict arising from affidavit and counter affidavit depositions are not on material issues, the Court calling for oral evidence becomes unnecessary. In effect where the conflicts are not material the case or where the facts are inadmissible in evidence the Court should not be saddled with the responsibility of calling oral evidence to resolve the conflict. See LSDPC vs. Adold/Stamn. Int. (Nig.) Limited (2005) 2 NWLR (Pt. 910) 603. Furthermore, where the conflicting evidence can be resolved from the documentary evidence, the need to call oral evidence becomes unnecessary. See Fashanu vs. Adekoya (1974) 6 Sc. 84 (1974) 1 All NLR (Pt. 35); Bunge vs. Gov. River State (2006) 12 NWLR (Pt. 995) 573.”

My understanding is that as the documentary evidence is used as a hanger the Court must therefore carefully go through the cause of action of a plaintiff and view carefully the facts deployed in the affidavit and the counter affidavit of the parties to resolve the issue of whether there was any conflict of facts. In the instant case, the learned counsel for the appellant at pages 8 to 10 of the Appellant’s Brief indexed the allegations as follows:

“a. In paragraph 6, the appellant alleged 1st Respondent’s failure to give 21-day notice of the nature of its primary to be conducted whether direct or indirect contrary to paragraph 8 of INEC Regulation for the Conduct of Political Party Primaries. This can only be answered by mere production of a notice duly given to the 2nd Respondent contradicting the above allegation;

b. In paragraph 7, the appellant alleged 1st Respondent’s failure to adopt uniform election method contrary to paragraph 8 of the INEC Regulation for the Conduct of Political Party Primaries. This can only be answered by the 1st Respondent producing evidence that it only ordered or conducted uniform method of election in all places;

c. In paragraph 10, the appellant alleged failure of the 1st Respondent to give notice or venue, date and time of primary election to the 2nd Respondent contrary to paragraph 9 of the INEC Regulation for the conduct of Political party Primaries. All that is necessary is for either of the Respondents to produce notice duly issued stipulating the requirement of the law;

d. In paragraph 11 of the affidavit in support of the appellant’s originating summons, the appellant alleged failure to give certain documents required to accompany notice of primary to INEC by every political party under paragraph 10 of the INEC’s Guideline for Nomination of Party Candidates. All that is required is for the respondents to produce documents submitted in fulfillment of the requirement above;

e. In paragraph 12 of the appellant’s affidavit, the appellant alleged failure of the 1st Respondent to give reason to INEC for rescheduling its primary election as required by Paragraph 17 (c) of INEC Regulation for the Conduct of Political Party Primaries. All that is required is for the respondents to produce any notice given by the 1st Respondent meeting this legal requirement;

f. In Paragraph 13, the appellant alleged failure of the 1st Respondent to give notice rescheduling the election contrary to Paragraph 17 (c) of INEC Regulation for the Conduct of Poetical Party Primaries. All that answers this allegation is for either of the Respondents to produce the notice given by the 1st Respondent.

g. In Paragraph 14, 15 and 16, the Appellant alleged non-existence or use of membership register to conduct direct primary in her constituency by the 1st Respondent. This is contrary to paragraph 11 of INEC Regulation for the Conduct of Political Party Primaries. The appropriate answer to this allegation is to produce the membership register or any part thereof;

h. In paragraph 17 of the affidavit, the appellant alleged non-monitoring of the primary election by INEC in accordance with Section 85 of the Electoral Act, 2010 (as amended) and paragraph 16 of INEC Regulation for the Conduct of political Party Primaries. All that the Respondents need to do is to produce a report of monitoring of the election by INEC officials.”

You can see pages 7 – 9 of the record of appeal for the allegations referred to above in the paragraph.

The 1st and 2nd Respondents who were Defendants at the lower Court put in counter-affidavits to rebut the allegations of the appellant. In the counter-affidavit of the 1st Respondent, he asserted that the 2nd Respondent, the plaintiff (now appellant), as well as other aspirants were notified of the venue, time and date for the conduct of the primaries.

That all the aspirants were at the venue except the appellant. The 2nd Respondent whose oversight function it is to monitor the primaries in her counter affidavit deposed that she was given the requisite notice of the 1st Respondent’s primaries and that the primaries held and thereafter the 1st Respondent submitted the list of those elected as candidates to her. That the appellant did not participate in the primaries.

From the state of facts before the lower Court, there are allegations and counter allegations thereby showing not only likelihood but violent dispute of facts. The appellant in his submission was of the opinion that the dispute could be resolved by either producing documents or by the Court making appropriate inferences as to failure to produce documentary evidence to prove an assertion. Beyond this, it is obvious in my mind in the instant case that the appellant is contesting the fact that the law was not complied with before holding primaries and announcing winner of the primaries held on 6th day of October, 2018. The winner was not joined in this suit. There is truly no doubt that there is dispute as to facts in this claim.

In a situation of this nature, the law requires that Originating Summons would not be the appropriate process for the initiation of the proceedings. The grouse of the appellant is that the lower Court did not order pleadings and did not access the merit of the case occasioning a miscarriage of justice. Counsel for the appellant called on this Court to apply Section 16 of the Court of Appeal Act to do the merit of the appellant’s case at the Court below.

It is at this point necessary to state that the provisions of Section 16 of the Court of Appeal Act confer legal power on the Court of Appeal to make any order which the Court below it could have made in the interest of justice. This presupposes that the Court below, this Court, must have got jurisdiction to entertain the suit. The provisions do not confer on the Court of Appeal the power to make an order which the trial Court could not have made in resolving the dispute between the parties in the suit before it. See Aderemi, JSC in the case of Obi v. INEC (2007) 11 NWLR (Pt. 1046) 560. It is very correct to hint that the purpose of Section 16 of the Court of Appeal Act, is to obviate delayed justice.

It must be noted however that before the provisions of this section can be invoked; (1) the lower Court or trial Court must have the legal power to adjudicate in the matter before the appellate Court can entertain it; (2) the real issue raised up by the claim of the appellant at the lower Court or trial Court must be seen to be capable of being distilled from the grounds of appeal; (3) all necessary materials must be available to the Court for consideration; (4) the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the material presented; and (5) the injustice or hardship that will follow if the case is remitted to the Court below, must clearly manifest itself.

The Federal High Court (Civil Procedure) Rules, 2009 under which the lower Court heard this matter has clearly under Order 3 Rules 6, 7 and 8 of the Rules made provision for the commencement of an action by Originating Summons. The Rules Provides:

“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.

Where right depends on construction of enactment.

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.
Discretion of the Judge.

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 deemed fit.”

The learned trial judge considered the case brought by the appellant and at pages 234 to 235 of the record of appeal concluded thus:

“A cursory look at the processes before me, particularly the affidavit evidence, I see highly contentious and disputed facts which can only be resolved by oral evidence. It is settled law that where there are conflicts on the face of an affidavit evidence, oral evidence should be adduced to resolve the conflict Section 116 of the Evidence Act, 2011; Falobi v. Falobi (1976) NMLR 169. The Plaintiff ought not to have commenced this Suit by Originating Summons. A fundamental defect in an originating process cannot be regularized or cured by amendment Victoria Abe & Anor v. Skye Bank Plc & Ors Unreported CAIL/1114/10.

This issues in contention are issues of facts and the superior Courts have in plethora of cases held that a defect in an Originating Process is very fundamental, commencing an action via the right Originating Process is a condition precedent for invoking the powers of the Court to adjudicate on any matter Isah v. INEC (2016) 18 NWLR Pt. 175 P. 238, paras. D – F.”

The learned trial judge was very correct in the foregoing findings and what was left for the trial judge to make the appropriate requisite order in the interest of justice to allow the parties fight their battle full swing and not to terminate the claim of the appellant.

Furthermore, the learned trial judge found that there was non-joinder of a necessary party who is the person that won the primaries being contested in this case. This issue from the facts in the record was not raised by the lower Court suo motu.

It is well established in our laws that when a Court in any proceeding find that there was non-joinder of a necessary party the Court may in the interest of justice take steps to: –
1. To remit the case for re-trial
2. To strike out the action if a re-trial would necessitate extensive and or complicated amendments to write and statement of claim to reflect the joinder.
3. To join for purpose of the appeal, the person who ought to have been joined in the trial Court.
4. To hold that the person complaining that he ought to have been joined was not such a necessary party and that the non-joinder would not defeat the cause or matter. See Akpata, JSC, in Okoye v. Nigeria Construction and Furniture Co. Ltd & Ors. (1991) 6 NWLR (Pt. 199) 501.

Considering the circumstances of the instant case, the learned trial judge ought not to have struck out the case for non-joinder. The Court I must say must readily enhance and facilitate access to justice at all time. What is of paramount importance to the Court and the parties is that the Court must have jurisdiction to entertain the claim brought before it.

In the case of A.G. Anambra State v. A.G. Federation (2007) 12 NWLR (Pt. 1047) 1, Muhammad, JSC held that:

“The general principles for the exercise of jurisdiction by a Court of law, as enunciated by a litany of decided case, are that:

(i) The subject matter of the case is within the jurisdiction of the Court and there is no feature in the case which prevents the Court from exercising its jurisdiction.

(ii) The Court is properly constituted as regards members and their requisite qualification and no members is disqualified for one reason of the other.

(iii) The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu v. Nkemdilim (1962) 1 All NLR 587 at 594, (1962) 2 SCNLR 341; Skenconsult (Nig.) Ltd v. Secondly Ukey (1981) 1 SC 6, Ishola v. Ajiboye (1994) 19 LRCN 35, (1994) 6 NWLR 9Pt. 352) 506; Western Steel Works Ltd v. Iron & Steel Workers Union of Nigeria (1986) 6 SC 35, (1986) 3 NWLR (Pt. 30) 617 Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350.

For case to be initiated by due process of law as in (iii) above, it presupposes that the jurisdiction of a Court to adjudicate in a matter must be determined by the facts placed before it and more importantly, by the phraseology of the plaintiff’s claim. See: Abacha & Anor. V. Fawehinmi (2000) FWLR (Pt. 4) 557, (2000) 6 NWLR (Pt. 660) 228; Ejike v. Ifeadi (1998) 6 SCNJ 87 at 89; (1998) 8 NWLR (Pt. 561) 323.”

If follows thereof that no matter the claim nursed by any plaintiff, due process must be followed for the Court to competently handle the case. This is apt because justice is not a gamble or an accidental scheme borne on the wings of any ones whims and caprices. It must be justice according to law.

In the instant case, the case was originated by Originating Summons which is not the appropriate process to use in this case. In a similar situation in the recent case of Alfa v. Attai (2017) LPELR – 42579 (SC), the Supreme Court held:

“The sole issue raised by this appeal is whether the appellant’s resort to the originating summons procedure to commence the instant matter is appropriate. The decisions of this Court on the point seem endless. It must be restated that the originating summons procedure is not ideal where there is violent dispute of facts of such proportion that makes the resolution of the dispute impossible or likely so. In litigations, there would always be dispute on questions of fact. It is however the difficulty, nay, the impossibility of the resolution of such a dispute on the basis of the affidavit in support of and opposition to the originating summons that will make commencing an action with an originating summons inappropriate. Where the dispute of facts remains hostile, such as in the instant case, their pleadings are ordered instead. See particularly the unreported decision of this Court in Appeal No: SC.717/2016 between Dr. Sampson Uchechukwu Ogah and Dr. Okezie Victor lkpeazu & 3 Ors., delivered on Friday, the 12th day of May, 2017, Director SSS v. Agbakoba (1999) 3 NWLR (Pt. 595) 425 and Olumide v. Ajayi (1997) 8 NWLR (Pt. 517) 433.”

Where as in this appeal, it is discovered that the action ought not to be commenced by Originating Summons, the Court shall proceed to order pleadings. See Emezi v. Osuagwu (2005) 12 NWLR (Pt. 939) 340, 347 and Atago v. Nwuche (2013) 43 NWLR (Pt. 1341) 337. The appropriate order to make here in the instant appeal will be to remit this case back to the Court below for hearing on pleadings.

From the foregoing therefore, issues one and two are resolved in favour of the appellant while issue three is resolved against the appellant. The appeal therefore succeeds in part. The decision of the lower Court in Suit No. FHC/ABJ/CS/1167/2018 delivered on 21/12/2018 is accordingly set aside. The case is hereby remitted back to the lower Court for it to be heard on pleadings by another judge of the Court.

Parties are to bear their respective costs.

ABDU ABOKI, J.C.A.: I had the privilege of reading before now, a draft of the lead judgment just delivered by my Learned Brother STEPHEN JONAH ADAH, JCA. His Lordship has prudently and diligently dealt with the issues that arose for determination. The facts that led to the appeal and the reliefs sought by the parties are well spelt out in the lead judgment and I will not repeat same. I agree with his reasoning and conclusion that the appeal partly succeeds and ought to be partly allowed. These findings and conclusions flowed from the evidence adduced at the trial.

I only quickly add that the mode of commencement of action is an indispensable aspect of our civil procedure; hence various Courts have it embodied in their Civil Procedure Rules. Originating summons is merely a method of procedure and not one that is meant to enlarge jurisdiction of the Court. The main advantage is simplicity resulting from the elimination of pleadings. Order 3 Rules 6 and 7 of the Federal High Court Civil Procedure Rules 2009 stipulates that:

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.

Simply put, the procedure of originating summons is meant to be invoked in a friendly action between parties who are substantially ad idem on the facts and who, without the need for pleadings, merely want, for example, a directive of the Court on the point of law involved. The procedure is not meant to be invoked in a hostile action between parties and in which the parties concerned need know before hand the issues which they are called upon to contend with from the pleadings. There can be disputed facts which originating summons procedure could resolve but where the disputed facts are substantial, the proper mode of commencing such an action is by writ of summons so that pleadings can be filed. In order words, originating summons procedure is appropriate where there is no substantial dispute of facts between the parties or likelihood of such dispute. See ALFA v. ATTAI & ORS (2017) LPELR 42579 (SC); FGN v. ZEBRA ENERGY LIMITED (2002) LPELR 3172 (SC).

In the appeal under consideration, it is evident from the state of facts before the lower Court that there are allegations and counter allegations thereby showing a likelihood of a substantial dispute of facts, in which case, commencement of the suit by way of originating summons is inappropriate.

I am therefore in agreement with the lower Court’s decision that this suit ought not to have been commenced by way of originating summons as there are highly contentious and disputed facts which can only be resolved by oral evidence.

It is on account of this and the more elaborately articulated lead judgment of my Learned Brother STEPHEN JONAH ADAH JCA, that I also find the appeal to be partly meritorious and same is accordingly allowed in part.
I abide by the orders contained in the lead judgment.

PETER OLABISI IGE, J.C.A.: I agree.

Appearances:

R.A.O. Adegoke Esq. with him, A. Ogunleye Esq., A. Adeleye Esq. and Vicar Oguafor Esq.For Appellant(s)

Ghani Arobo Esq. with him, Precious Agharese Esq.
for 1st Respondent.

Abdulrazak Jimoh Esq.
for 2nd Respondent.
For Respondent(s)