ALHAJI SEFIU ADEGBENGA KAKA v. CHIEF ADEBISI ADEGBUYI & ORS.
(2012)LCN/5396(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of May, 2012
CA/I/123/2011
RATIO
COURT: DUTY OF COURT TO TREAT TIME-BOUND SUIT WITH SPEED
Therefore, the peculiarity of the limited time-bound suit called for decisive and lightening like speedy adjudication by the court below – See Pam v. Mohammed (2008) 15 NWLR (Pt.1112) 1 at 48 per Oguntade, J.S.C. (as he was) inter-alia thus –
“…None of the parties was disabled from putting across to the trial court his arguments in the matter. Can it be said that there was a denial to the appellants of their right to fair hearing. I think not, I have no doubt that the proceedings before the trial court on 18 April 2007 were rushed and conducted in a hurry. This was so because the elections to the National Assembly which formed the subject matter of the suit were to be conducted on 21 April 2007. In other words, there was only a period of 3 (three) days available to the parties and court to come to a determination of the matter. Given the nature of the special circumstances that prevailed, I am unable to conclude that the appellants were denied their right to fair hearing.”
Further, in Pam (supra) at 54, it was held –
“Again, there is the need for any court assigned to handle a case of this nature to act swiftly by ensuring that the matter was disposed of on time and before the date fixed for the elections.That was what the learned trial Judge did in the instant case. He deserved to be commended for taking all the steps he took in the case by warding off all attempts by opposing counsel in the case to frustrate the early completion of the case which was before the date fixed for the elections.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
COURT: DUTY OF TRIAL COURT IN PROCEEDINGS
See again Banna v. Telepower Nigeria Ltd, (2006) 7 SCNJ 182 at 195 –
The best Judge in trial procedure is undoubtedly the trial judge. He sees it all because he closely watches the proceedings and all that. He feels the pinch when parties try to dilly-dally the proceedings or adopt tricks to overreach or outsmart the adverse party. If the trial judge fails to take a position in the light of the rules of court and takes or tows the line of sympathy in the way the court of Appeal did, then he will have a plethora or load of cases in his cause list to the extent that he cannot get out of a mounting backlog of cases. That will reflect on him adversely and in these days of continuous assessment of the performance of Judges, he will be in for it. While I concede that a trial judge cannot throw away the constitutional provision that parties should be given a hearing in matters before the court because of repercussions of performance assessment, a Judge owes the administration of justice a duty to facilitate and ensure the speedy hearing of a case before him. The notoriety that delayed justice attracts to the Judiciary is such that Judges must work towards the speedy dispensation of justice. We do not have a choice in this troublesome matter. Let us do our best and our best is to facilitate the speedy hearing of cases.”
See also Newswatch Publications v. Atta (2005) 4 SCNJ 282, Ogene v. Ogene (supra), Stirling Civil Engineering Nig. v. Nwosu (supra). PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
ACTION: HOW IS LOCUS STANDING OF A CLAIMANT DETERMINED
Locus standing of a claimant is determined by looking at the papers filed by a claimant in the suit – the originating summons in this case – not the response of a defendant to the action. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
ACTION: REQUIREMENT OF LOCUS STANDI
In deciding locus standi, it is not necessary to determine whether the action might succeed. What is important is whether the claimant has sufficient interest over and above members of the public in respect of a justiciable or triable grievance See Chijuka v. Maduewesi (2011) 16 NWLR 181 at 197 204-205. PER JOSEPH SHAGBAOR IKYEGH, 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
ALHAJI SEFIU ADEGBENGA KAKA Appellant(s)
AND
1. CHIEF ADEBISI ADEGBUYI
2. ACTION CONGRESS OF NIGERIA
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The 1st respondent took an originating summons against the appellant and the 2nd – 3rd respondents at the Federal High Court, Abeokuta, (the court below) in which a preliminary objection by the appellant to get rid of the suit was overruled by the court below, hence the appeal on the refusal of the court below to uphold the appellant’s preliminary objection.
   Bereft of details, the appellant and the 1st respondent were at all material times card carrying or registered members of the 2nd respondent political party. The 2nd respondent was statutorily required to hold democratic primaries under its constitution to choose or nominate its candidate for the senatorial seat of Ogun East Senatorial District at the general elections of 2.4.2011. The appellant’s case was that he emerged the unopposed candidate at the primaries after the 1st respondent voluntarily withdrew from the race. The appellant’s name was then forwarded to the 3rd respondent as the nominated candidate of the 2nd respondent for the scheduled election. The 1st respondent’s case was that 2nd respondent hand-picked the appellant to vie for the seat at the scheduled general election. The 1st respondent filed an originating summons challenging the alleged nomination of the appellant.
   The appellant took preliminary objection to the originating summons on sundry grounds that the issues raised therein were contentious and should be heard on the general cause list; that the 1st respondent lacked the locus standing to bring the action; and that the court below should not have rushed the proceedings in the way it did by curtailing the appellant’s time to adequately respond to the preliminary segment of the proceedings targeted at disposing of the suit in limine in favour of the appellant. The preliminary objection of the appellant to terminate the suit was heard and overruled by the court below.
   A notice of appeal with four grounds of appeal was filed by the appellant challenging the Ruling of the court below, Arguments on the appeal contained in the appellant’s brief filed on 15.6.11, were proffered under these issues for determination –
“(i) Whether the entire proceedings of this suit at the lower court breached the Appellant’s constitutional right to fair hearing and is therefore a nullity.
(ii) Whether the learned trial judge was right when she upheld the locus standi of the 1st respondent to commence this suit.
(iii) Whether the learned trial judge properly assumed jurisdiction to entertain this suit.”
   The pith of the argument on the first issue was that the cause of action arose on 10.1.11, while the suit was filed on 8.3.11, and served on the appellant on 25.3.11, a Friday, and the preliminary objection was taken on 31.3.11, which stampeded the appellant into responding to the suit, more so the appellant was deprived of the statutory period of 14 days stipulated by Order 13 rule 35 (15) of the Rules of the court below for the defendant’s response to the originating summons especially as the originating summons, enlarged the statutory period to 30 days within which the appellant was to deliver his defence to the suit, consequently by rushing the proceedings on 1.4.11, culminating in the dismissal of the objection, when the application was yet to be served on the 2nd – 3rd respondents, the court below breached the appellant’s right to fair hearing and the proceedings thereat rendered null and void vide Orugbo v. Una (2002) FWLR (Pt.127) 1024 or (2002) 9 – 10 SC 51 at 64; Ariori v. Elemo (1983) 1 SCNLR 1 at 4 and Adigun v. A. G. Oyo State (1987) 1 NWLR (Pt.53) 678 at 684.
   The contention on the second issue was that the 1st respondent had voluntarily withdrawn from the race before the primaries were held and ceased to have any recognizable interest with respect to the senatorial election to vest him with the standing to sue on the originating summons in the court below; more so the conduct of the primaries and nomination of candidates for election are intra-party matters not cognizable by the court, especially as the 1st respondent lacked the capacity to file the suit vide section 6 (6) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, and the cases of Anazado v. Audu (1999) 4 NWLR (Pt.600) (no pagination), Chukwu v. Ichgowo (1999) 4 NWLR (Pt. 600) (no pagination) and Dalhatu v. Turaki (2003) 15 NWLR (Pt. 843) 310.
   It was submitted on the third issue that the facts whether the 1st respondent was the only senatorial candidate of the 2nd respondent and that, the appellant did not participate in the primaries conducted by the 2nd respondent for the senatorial seat on 10.1.11, were key to the originating summons which the appellant and the 1st respondent tendered contentious affidavit evidence which the court below overlooked, therefore by Order 3 rules 6 and 7 of the Rules of the Court below read together with the cases of N.B.N. 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, the suit was not to proceed on originating summons but on the general cause list.
   The 1st respondent’s brief dated and filed on 15.7.11, identified one issue for determination at page 4 thereof thus –
“Whether this appeal is not wholly academic in view of the dismissal of the 1st respondent’s originating summons being the object of the appellant’s notice of preliminary objection.”
   The 1st respondent argued that the substantive action was dismissed on 1.4.11, rendering unnecessary the appeal brought by the appellant against the overruling of his preliminary objection by the court below, as the dismissal of the suit favoured the appellant and rendered his interlocutory appeal academic vide Plateau State v. A.G. Federation (2006) All FWLR (Pt. 305) 590 at 646, Abubakar v. Yar’Adua (2008) All FWLR (Pt.404) 109, Habib Nig. Plc v. Gifts Unique Nig. Ltd. (2005) All FWLR (Pt.241) 234 at 260, Edu v. Yusuf (2007) All FWLR (Pt. 348) 984, Unity Bank Plc v. Bouari (2008) All FWLR (Pt.416) 1825, Sokwo v. Kpongbo (2008) All FWLR (Pt.410) 680.
   Responding to the appellant’s arguments seriatim, the 1st respondent submitted that the court below was faced with a pre-election matter or suit in respect to an event taking place on 2.4.11, and had to treat the proceedings with dispatch to tally with the peculiar nature of the case which did not breach the time honoured principle of fair hearing, especially as the appellant knew of the pendency of the suit on 16.3.11, when it was mentioned in the court below and that court abridged time for the filing of processes by adjourning the suit for hearing on 28.3.11, at which the appellant’s preliminary objection was heard along with the substantive suit against which the appellant had filed counter affidavit thus giving the appellant ample opportunity to contest the action without violating his right to fair hearing vide Oyeyemi v. Commissioner for Local Government (1992) 2 NWLR (Pt.226) 221, Pam v. Mohammed (2008) All FWLR (Pt.436) 1868, University of Lagos v. Amatokwu (2005) All FWLR (Pt.227) 929, Olareaffia v. Agwu (2008) All FWLR (Pt.445) 1601 at 1627, Mullane v. Central Hanover Bank and Trust Co. 339 US 306, Stirling Civil Engineering Nig. v. Nwosu (2008) All FWLR (Pt.413) 1399, Ogene v. Ogene (2008) All FWLR (Pt.403) 1326.
   It was also submitted that by the uncontroverted affidavit evidence of the 1st respondent showing he was at all material times a registered financial member or card carrying member of the 2nd respondent and, going by the originating summons which is the only place to look for the standing of the 1st respondent to sue, the 1st respondent disclosed his locus standing to file the originating summons vide Nigeria Bottling Co. Plc. v. Ezeifo (2002) FWLR (Pt.97) 772 at 785, Daniyan v. Iyagin (2002) FWLR (Pt.120) 1805 Owodunni v. Reg. Trustees of C. C. C. and Anor, (2000) FWLR (Pt.9) 1455. Ogbahon v. Registered Trustees C.C.C.G. (2001) FWLR (Pt. 80) 1495, Walter v. Skyll (Nig) Ltd. (2000) FWLR (Pt.13) 2244; and that the substance of the suit was the construction of the import of section 87 of the Electoral Act, 2010, as amended, in relation to the uncontroverted facts contained in the affidavit in support of the suit triable under Order 3 rule 7 of the Rules of the court below, therefore the counter-affidavit filed on 1.4.11, a day after the Ruling disposing of the preliminary objection was delivered, was no longer germane to the determination of the preliminary objection vide Larmie v. D.P.M. & Services Ltd. (2005) All FWLR (Pt. 296) 775- Gamu v. Hausa (2006) All FWLR (Pt. 293) 378 enjoining the Court to be bound by its record.
   In my respectful view, the issues formulated by the appellant are apt for the determination of the appeal and same shall be followed in the course of the discourse. The record of the court below (the record) disclosed the originating summons was filed on 8.3.11; the appellant filed preliminary objection to the suit on 28.3.11; the preliminary objection and the suit came up for hearing on 31.3.11; and, uninhibited arguments on the preliminary objection were taken by the appellant without whimper of protest of time constraint, hindrance, or stampede. For ease of reference, pages 225 – 226 of the record on the proceedings of that day are copied verbatim below:
“Case Called.
O. Wey (Mrs) appears for the plaintiff who is absents.
R. Okesiji appears with A. O. Kaka for the 2nd Defendant who is absent. 1st Defendant absent and not represented.
D. Ume-Alor appears for the 3rd Respondent who is absent.
Wey: we have an originating summons as well as a Motion for Interlocutory Injunction.
Okesiji: We have been served with Originating Summons and Motion on Notice last week Friday we responded by a Notice on Preliminary objection and counter Affidavits. We have affected service of processes filed on Plaintiff and not to other Defendants who are in Abuja.
I have just given copies of processes to Counsel to 3rd Defendant.
Ume-Alor: I cannot confirm whether copies of the Originating Summons and Motion for Interlocutory Injunction have been served.
Okesiji: Notice on Preliminary Objection dated 28/03/11 is a Preliminary objection to Plaintiff originating summons and Motion on Notice both dated 28/03/11. Supported by a written Address dated 28/03/11. I adopt contents of written Address. Action Congress and “Action congress of Nigeria” are not synonymous. Action congress of Nigeria is a political party recognized by law and “Action Congress” (whose Constitution is exhibited) has ceased to exist as a political party. Plaintiff has exhibited (in Exhibit A of Originating Summons) his membership card of Action Congress.
Ume-Alor: It is not in doubt that the 3rd Respondent published the name of the 2nd Respondent as the candidate representing Ogun East senatorial Elections coming up on 2nd/04/11.
However, 3rd Respondent is an impartial umpire and does not seek to take sides in a matter that is an intra-party affair. We urge court to do justice.
Wey: Before Court is an Originating Summons dated 8/3/11. We have written a reply in the form of a written Address dated 30/03/11. We adopt our argument therein as argument in Response to 2nd Defendants Notice of preliminary objection.”
   At no time did the appellant complain before the court below that the proceedings of that day (supra) denied him fair hearing. Neither did the appellant ask for an adjournment nor put across any complaint of constraint of time to the court below that he was stampeded into participating in the proceedings of that day. The complaint that the appellant was denied fair hearing is therefore abstract or farfetched and unsupported by the record which is binding on the parties vide Larmie v. D. P. M. and Services (supra). Gamu v. Hausa (supra) cited by 1st respondent’s learned counsel and Veepee Industries Ltd. v. Cocoa Industries Ltd. (2008) 4 SCNJ 482 at 498.
   Besides, the suit was a pre-election matter that was time-bound requiring full throttle adjudication in terms of handling it expeditiously in order to comply with the deadline of 2.4.11, for the holding of the general election – the date the event the suit was intended to meet was to occur. The court below was on top of the task and deserved to be commended, not condemned, for the priority and prompt attention it gave the proceedings by hearing and ruling on the preliminary objection on the same day.
   Although the hearing of the preliminary objection was at frenetic pace, justice was not sacrificed on the altar of speed, as none of the parties was shut out from fully presenting his case in the preliminary proceedings touching a pre-election matter of urgency and exigency. Therefore, the peculiarity of the limited time-bound suit called for decisive and lightening like speedy adjudication by the court below – See Pam v. Mohammed (2008) 15 NWLR (Pt.1112) 1 at 48 per Oguntade, J.S.C. (as he was) inter-alia thus –
“…None of the parties was disabled from putting across to the trial court his arguments in the matter. Can it be said that there was a denial to the appellants of their right to fair hearing. I think not, I have no doubt that the proceedings before the trial court on 18 April 2007 were rushed and conducted in a hurry. This was so because the elections to the National Assembly which formed the subject matter of the suit were to be conducted on 21 April 2007. In other words, there was only a period of 3 (three) days available to the parties and court to come to a determination of the matter. Given the nature of the special circumstances that prevailed, I am unable to conclude that the appellants were denied their right to fair hearing.”
Further, in Pam (supra) at 54, it was held –
“Again, there is the need for any court assigned to handle a case of this nature to act swiftly by ensuring that the matter was disposed of on time and before the date fixed for the elections.That was what the learned trial Judge did in the instant case. He deserved to be commended for taking all the steps he took in the case by warding off all attempts by opposing counsel in the case to frustrate the early completion of the case which was before the date fixed for the elections.”
See again Banna v. Telepower Nigeria Ltd, (2006) 7 SCNJ 182 at 195 –
   The best Judge in trial procedure is undoubtedly the trial judge. He sees it all because he closely watches the proceedings and all that. He feels the pinch when parties try to dilly-dally the proceedings or adopt tricks to overreach or outsmart the adverse party. If the trial judge fails to take a position in the light of the rules of court and takes or tows the line of sympathy in the way the court of Appeal did, then he will have a plethora or load of cases in his cause list to the extent that he cannot get out of a mounting backlog of cases. That will reflect on him adversely and in these days of continuous assessment of the performance of Judges, he will be in for it. While I concede that a trial judge cannot throw away the constitutional provision that parties should be given a hearing in matters before the court because of repercussions of performance assessment, a Judge owes the administration of justice a duty to facilitate and ensure the speedy hearing of a case before him. The notoriety that delayed justice attracts to the Judiciary is such that Judges must work towards the speedy dispensation of justice. We do not have a choice in this troublesome matter. Let us do our best and our best is to facilitate the speedy hearing of cases.”
See also Newswatch Publications v. Atta (2005) 4 SCNJ 282, Ogene v. Ogene (supra), Stirling Civil Engineering Nig. v. Nwosu (supra).
   There is therefore no substance in the appellant’s complaint under the first issue for determination that the court below denied him the right to fair hearing respecting the hearing and determination of his preliminary objection to the originating summons filed by the 1st respondent.
   Locus standing of a claimant is determined by looking at the papers filed by a claimant in the suit – the originating summons in this case – not the response of a defendant to the action. The 1st respondent’s originating summons disclosed in paragraphs 1 – 12 of the affidavit in suppoft thereof at pages 6 – 7 of the record –
“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, 2011 general election vide duly completed Declaration of Intention Form herewith attached as Exhibit ‘B’.
3. In view of the approaching April 2011 general elections, the 1st defendant informed all aspirants desirous of running for elective offices on the platform of the 1st defendant in ‘The Nation’s publication of 5 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 10 January 2011. I paid the said sum of N600,000.00 on 8 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 ‘CA’.
5. The 1st defendant expressty stated on page 61 of ‘The Nation’ of Wednesday 5 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 9 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 for totalitarianism and dictatorship.
10. The 1st defendant did not conduct any primary election or nomination exercise on 10 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 10 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.”
   The pieces of affidavit evidence copied above were at the material time not countered by the appellant. Even at the time the preliminary objection was heard, the appellant had not filed counter-affidavit against the said affidavit. It was a day after the preliminary objection was taken that the appellant filed his counter-affidavit. The 1st respondent’s unchallenged affidavit at the material time brought forth his right to launch the originating summons proceedings, in my view.
   In deciding locus standi, it is not necessary to determine whether the action might succeed. What is important is whether the claimant has sufficient interest over and above members of the public in respect of a justiciable or triable grievance See Chijuka v. Maduewesi (2011) 16 NWLR 181 at 197 204-205.
   In my considered view, based on the originating summons, the 1st respondent established his right to sue and be heard on the originating summons and the court below was right in ruling that the 1st respondent had the standing to bring the originating summons – See Omega Bank Plc v. Government of Ekiti State (2007) 16 NWLR (Pt. 1061) 445 at 465, Daniyan v. Iyagin (supra), Owodunni (supra) and Nigerian Bottling Co. Plc v. Ezeifo (supra) cited by the 1st respondent.
   Whether the originating summons is bound to fail and be dismissed on the contention made by the appellant that the nomination of a candidate for an elective post is the domestic affair of the political party or is an intra-party affair could not have been answered in the affirmative for the appellant as the papers filed by the 1st respondent at the material disclosed he was sole candidate for the elective post on the platform of the 2nd respondent; therefore, it was of no moment to the success of the preliminary objection at that point in time. I say no more.
   At the time the preliminary objection was heard and disposed of the appellant had not filed counter-affidavit against it. The affidavit evidence of the 1st respondent revealing that he was the legitimate sole candidate that had paid for and was recognised by the 2nd respondent as its flag-bearer for the elective seat of Ogun East Senatorial District in contra-distinction to the “hand-picked” appellant was unchallenged, so on the facts or evidence at the material time there was no conflict, not to say material/irreconcilable conflict, in the affidavit evidence.
   Also, the 1st respondent sought for the construction of section 87 of the Electoral Act 2010, as amended, and Articles 6(i) (a) and (b) and 21.3(a) and (b) of the 2nd respondent constitution at page 5 of the record vis-a-vis the then uncontested facts in his affidavit evidence in these words –
“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 Ad, 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 9 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 State 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 2 April 2011 should be set aside being in breach of statutory provisions and 1st defendant’s guidelines in the same respect.”
   Consequently, at the time the preliminary objection was entertained by the court below, the one way evidence presented by the originating summons was neither contentious nor hostile to warrant ordering the suit to be moved to the general cause list to be heard on pleadings. Accordingly, speaking advisedly, the position of things as at the time the preliminary objection was heard on the one-sided materials before the court below, had not matured to cause the suit to be transferred to the general cause list and, the court below was right in overruling the preliminary objection at that stage of the proceedings as its duty then was to construe a statutory provision and a written instrument or document – the 2nd respondent constitution – against the backlash of the then uncontested facts of the originating summons – See Order 3 Rules (6) and (7) of the Rules of the court below thus:
“Any person claiming to be interested under a deed, Will, enactment or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.” (Rule 6).
“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 but may make such orders as the judge deems fit.” (Rule 7).
See again: Akilu v. Fawehinmi (No, 2) (1989) 2 NWLR (Pt.102) 122 and Pam (supra) at 50 – 51, Federal Government of Nigeria v. Zebra Energy Ltd. (2002) 18 NWLR 152 AT 204-295.
   I venture to say, with respect, and by way of postscript, that the nature of the preliminary objection taken before the court below could have been subsumed in the substantive suit and taken alongside it to save time and costs, not to have been hastily brought by the appellant to create a punishing schedule for the conduct of the interlocutory proceedings before that court.
   In the final analysis, I find no merit in the appeal. I hereby dismiss it and uphold the Ruling of the court below (Ofili-Ajumogobia, J.) overruling the preliminary objection to the hearing of the originating summons at that stage of the proceedings. The appellant shall pay N30,000 costs to the 1st respondent.
STANLEY SHENKO ALAGOA, J.C.A.: I read before now the lead judgment just delivered by my learned brother Ikyegh (J.C.A.). I agree with the reasoning and conclusion reached that the appeal lacks merit and should be dismissed. I dismiss same and abide by the consequential order/s made therein including the order on costs.
ADZIRA GANA MSHELIA, J.C.A.: I have had the advantage of reading in draft the Judgment delivered by my learned brother, IKYEGH J.C.A. I agree with his reasoning and conclusion that the appeal has no merit. My learned brother had clearly treated the issues raised in this appeal but I would only add few words of mine for the purpose of emphasis. Contrary to the submission of appellant’s counsel, it is clear from the originating summons that 1st respondent has locus standi to institute the action. The materials placed before the court which was one sided disclosed that the 1s respondent was the sole candidate for election on platform of the 2nd respondent. At the time the preliminary objection was entertained by the court below, the one way evidence presented by the originating summons was neither contentious nor hostile to warrant ordering the suit to be moved to the general cause list to be heard on pleadings. For the more detailed reasons stated in the lead Judgment which I adopt as mine, I too dismiss the appeal with costs as assessed.
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Appearances
Mr. Rasaq OkesijiFor Appellant
AND
Mr. Taiwo Kupolati for the 1st RespondentFor Respondent
