APC v. MOGHALU & ORS
(2022)LCN/16242(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, February 23, 2022
CA/ABJ/CV/13/2022
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
ALL PROGRESSIVES CONGRESS (APC) APPELANT(S)
And
1. CHIEF (DR.) GEORGE MOGHALU 2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 3. EMMANUEL NNAMDI ANDY UBA RESPONDENT(S)
RATIO
THE POSITION OF LAW ON HERESAY
What then is hearsay? The law is very clear on what hearsay connotes. Section 37 of the Evidence Act, 2011 provides the statutory definition of hearsay. It says: Hearsay means a statement — (a) Oral or Written made otherwise than by a witness in for a proceeding: or (b) Contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it. From the above statutory definition of hearsay evidence, it is in essence, a statement made by a person who is not a witness in a proceeding, or at contained/recorded in a book which by the provision of the Evidence Act is rendered inadmissible. It is also hearsay if it is offered in proof of the truth of the statement. See Subramarian v. Public Prosecutor (1956) 1 WLR 965 at 969.
See also the case of Ize-lyamu Osagie Andrew & Anor. v. INEC & Ors., (2018) 9 NWLR (Pt. 1625) 507 per Okoro, JSC. PER ADAH, J.C.A.
WHETHER OR NOT A DEPONENT IN AN AFFIDAVIT BEFORE THE COURT MUST DEPOSE TO THE FACTS OF HIS OWN PERSONAL KNOWLEDGE
The law is well settled beyond doubt as presented by the Supreme Court in the case of Alhaji Yekini Jimoh v. The Hon. Minister FCT & Ors., (supra), a deponent in any affidavit before the Court must deposed to the facts either of his own personal knowledge or from “information which he believes to be true”. If the facts are of his own personal knowledge, there is no extra burden explaining further complexion or intimate circumstances of his knowledge of the facts other than to state how personally he was involved. In a situation however, where his deposition is based on any fact derived from other sources, he must as a duty or obligation set forth explicitly the facts and circumstances of his belief. This is the hallmark of Section 115(3) of the Evidence Act. This law is plain without fear of repetition, the law specifically provides thus:
(3) When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
(Underlining mine, for emphasis). PER ADAH, J.C.A.
WHETHER OR NOT POLITICAL PARTIES MUST OBEY THEIR CONSTITUTION WHICH THEY MADE THEMSELVES
The law has long been settled that political parties must obey the constitution, Electoral Act as well as their constitution and guidelines they made for themselves and where any action is done contrary to the laid down rules, the Courts will intervene and nullity such an action. The Courts have in plethora of decided cases held that political parties must obey their own constitution which they made themselves, as the Court will not allow them to act arbitrarily or as they like. Counsel relied on the cases of Tarzoor v. loraer (2016) 3 NWLR (Pt. 1500); Shinkafi v. Yari (2016) 1 SC (Pt. II) 1; PDP v. Sylva (2012) 13 NWLR (Pt. 1316) 85; Marafa & Ors v. Dan Alhaji & Ors (2019) LPELR 47012 (CA); APC v. Karfi (2018) 6 NWLR (Pt. 1616)479; Akpatason v. Adjoto & Ors (2019) LPELR-48119 (SC); Mato v. Hember & Ors (2018) 5 NWLR (Pt. 1616) 258; (2018) All FWLR (Pt. 925) 146; (2017) LPELR-42765(SC). PER ADAH, J.C.A.
THE POSITION OF LAW ON POLITICAL PARTIES SEEKING TO NOMINATE CANDIDATES FOR ELECTIONS UNDER THE ACT
Under the Electoral Act, specifically Section 87 thereof, a political party seeking to nominate candidates for elections under the Act, shall hold primaries for all the aspirants to all elective positions. The choice of procedure for party primaries is that of the political parties. The law however, placed on the political parties the duty of ensuring that all the aspirants are given equal opportunity at the primaries of being voted for by the members of the parties. To achieve this, every political party is enjoined under the Electoral Act to have guidelines to govern the exercise. Furthermore, the 2nd respondent, Independent National Electoral Commission (INEC) must be notified of such an exercise at least 21 days to the exercise. When notified, the 2nd respondent INEC may now attend to observe the exercise. There is nothing in the law that requires any external body other than the political parties to nominate/sponsor a candidate for an election. It is fundamental and well settled that the political parties have the monopoly of nominating or sponsoring their own respective candidates for an election under our laws. There is a litany of authorities of our apex Court of which Pali v. Abdu & Ors., (2019) LPELR – 46342 (SC), comes handy, to the effect that sponsorship or nomination of a candidate for election is within the domestic spheres of the political parties over which the Courts are restrained from exercising jurisdiction. The Court can only be invited by any party member aggrieved of the conduct of a political party in the direction under Section 87 (9) of the Electoral Act, 2010 (as amended). PER ADAH, J.C.A.
THE POSITION OF LAW ON COMMENCING ELECTION MATTERS BY ORIGINATING SUMMONS
On the issue of Originating Summons, the law is settled that it ensures a quick disposal of a suit especially an election matter which requires some measure of urgency but where the proceedings are hostile, it cannot be used. See Jev. & Anor v. lyortuom & Ors., (2014) LPELR – 23000 (SC). The nature of Originating Summons was well explained by the Supreme Court in the case of Inakoju v. Adeleke (2007) LPELR – 1510 (SC), where Tobi, JSC, held:
“The action was commenced in the High Court by originating summons. Commencement of action by 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 or pleadings. See Din v. Attorney 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, Keyamo v. House of Assembly, Lagos State (2002) 18 NWLR (Pt. 799) 605. PER ADAH, J.C.A.
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court sitting in Abuja in suit No FHC/ABJ/CS/648/2021 delivered on the 20th day of December, 2021 by l. E. Ekwo, J.
This case was originated by the 1st Respondent who as the plaintiff took out an Originating Summons against the 2nd and 3rd Respondents as 2nd and 3rd Defendants at the lower Court, and the appellant as the 1st Defendant at the lower Court. The Originating Summons was taken out on 8th day of July, 2021 and sought the determination of three questions and several consequential reliefs.
The parties joined issues on the originating summons and the lower Court on the 20th December, 2021 entered judgment for the 1st Respondent, granting the reliefs sought in the Originating Summons.
Aggrieved by the decision, the appellant in this instant appeal filed two notice of appeal on the 21/12/2021 and another one on the 31/12/2021. The appellant relies on the notice of appeal filed on 31/12/2021. There are sixteen grounds of appeal listed in the notice of appeal.
The Records of appeal inclusive of the additional Records of Appeal were all transmitted. The Appellant filed the appellant’s brief of argument on the 19/1/2022. The 1st Respondent filed his 1st respondent brief of argument on the 30/1/2022. The Appellant’s reply brief was filed on the 1/2/2022. The briefs were later adopted as their respective arguments in this appeal.
In this appeal, the appellant distilled eight (8) issues for determination. These eight (8) issues are framed as follows.
1. Whether the learned trial judge erred in law when he suo motu discountenanced the appellant’s counter affidavit and further counter affidavit on the grounds of hearsay without recourse to Section 115 (1) 3 and (4) of the Evidence Act, 2011 which occasioned a miscarriage of justice. (Distilled from ground 1 of the ground of appeal).
2. Whether the appellant’s primary election may be invalidated merely on the ground that the 2nd respondent was not present at the time the election commenced or that accreditation, screening and voting did not commence within the time frame stipulated under the appellant’s guidelines. (Arising from grounds 2 and 4 of the grounds of appeal).
3. Whether the learned trial judge was right in holding that the appellant acted in collusion with the 3rd respondent in the conduct of its primary election when there was no evidence on record to sustain that finding. (Arising from ground 6 and 7 of the grounds of appeal).
4. Whether the learned trial judge erred in law when it discountenanced the preliminary objection of the appellant, assumed territorial and substantive jurisdiction to entertain and determine 1st Respondent’s originating summons. (Distilled from ground 11 of the notice of appeal).
5. Whether the Court below was not divested of jurisdiction to hear and determine the suit having regard to the fact that necessary parties to the action were not joined — parties who on their part claimed victory in the primary election and had instituted action to that effect — a matter to which the attention of the learned trial judge was drawn. (Arising from grounds 9 and 12 of the grounds of appeal).
6. Whether the conclusion on issues which were never pleaded, never canvassed, never led in evidence by the parties, never made a question for determination in 1st respondent originating summons, never addressed upon by the counsel, but raised suo moto by the trial Court, which said conclusions were unfair, detrimental and prejudicial to the appellant who was thereby taken by great surprises and amounts to denial of fair hearing. (Distilled from grounds 3 and 13 of the grounds of appeal).
7. Whether the learned trial judge was right to entertain the action by way of originating summons in spite of the fact that the facts in support of the 1st respondent’s case were hostile and substantially disputed by the appellant and 3rd Respondent. (Arising from ground 14 of the grounds of appeal).
8. Whether the Court below did not err when it granted the reliefs sought by the 1st Respondent despite not having the jurisdiction over same and the absence of evidence in support of the case of the 1st Respondent. (Arising from grounds 5, 8, 10 and 15 of the grounds of appeal)
The 1st Respondent framed three issues in the 1st Respondent brief of argument, thus:
1. Whether the below was right in overruling the preliminary objection to jurisdiction and motion for conversion to pleadings raised by the appellant for lacking in merit. (Distilled from Grounds 9, 11, 12 and 14 of the Notice of Appeal).
2. Whether the Court below was correct in discountenancing the averments in the counter – affidavit and further — affidavit of the Appellants as hearsay evidence and in grave contravention of the provisions of the evidence Act, 2011. (Distilled from grounds 1 and 13 of the notice of Appeal).
3. Whether the Court below was right in holding that primary election of the Appellant held on 26th June, 2021 was not conducted in accordance with the provisions of the Electoral Act, 2010 (As amended) and the appellant’s guideline for the nomination of candidates for the Anambra 2021 Gubernatorial Election – Direct primaries (Option A4). (Distilled from grounds 2, 3, 4, 5, 6, 7, 8, 10, 15 and 16 of the notice of Appeal).
I adopt the eight issues framed by the appellant for consideration in this appeal. The issues cover all the issues generated by the other parties in their respective Briefs. I shall start with issues one and six.
Issues One and Six:
These issues are – Whether the learned trial judge erred in law when he suo motu discountenanced the appellant’s counter affidavit and further counter affidavit on the grounds of hearsay without recourse to Section 115 (1) 3 and (4) of the Evidence Act, 2011 which occasioned a miscarriage of justice;
and
Whether the conclusion on issues which were never pleaded, never canvassed, never led in evidence by the parties, never made a question for determination in 1st respondent originating summons, never addressed upon by the counsel, but raised suo motu by the trial Court, which said conclusions were unfair, detrimental and prejudicial to the appellant who was thereby taken by great surprises and amounts to denial of fair hearing.
Learned counsel for the Appellant argued that the person who informed the Deponent of the Appellant in its counter affidavit is Dare Oketade, the Head of Legal Services of the Appellant. The electoral committee that conducted the primary election in dispute submitted their own report to the said Dare Oketade and Dare Oketade gave the information to the said Deponent in his capacity as the person in custody of the report submitted by the electoral committee. More so, the suit of the 1st Respondent before the trial Court was decided on affidavit evidence. Action decided on affidavit evidence do not require that the Deponent of the affidavit must be those who were at the venue of the event. A deponent can validly depose to facts he derived from another person. The Deponent of the Appellant’s counter affidavit as well as its further counter affidavit derived the facts from another person. The trial Court wrongly discountenanced both the counter affidavit and further counter affidavit of the appellant. Counsel further submits that Mr. Dare Oketade Esq., being the informant to the Appellant’s deponent, gave information within his knowledge and official capacity. Counsel relied on the cases of Josien Holdings Ltd & Ors v. Lornamead Ltd & Anor (1995) LPELR-1634 (SC); Emeka v. Chuba – Ikpeazu & Ors., (2017) LPELR – 41920 (SC); DYS Trocca Vallesia Limited & 7 Ors., v. Segun Sanyaolu & 7 Ors., (2016) LPELR 40423 (CA) PP. 13 – 14, Paras. B-B; Ashiru v. INEC (2020) 16 NWLR (Pt. 1715) PP. 441 Paras. B-D; A.G. FED v. Kashamu (No. 1) (2020) 3 NWLR (Pt. 1711) P 276, Paras G-H; Section 115 of the Evidence Act.
Learned counsel for the Appellant submitted that the suit of the 1st Respondent before the trial Court was decided on affidavit evidence having been instituted under the originating summons procedure, in actions commenced by originating summons, the affidavit evidence takes the place of pleadings, the depositions are on oath and have the same evidential value as a sworn testimony of a witness in a suit commenced by writ of summons in evidence is led. Counsel relied on the case of Pam v. Inc. Trustees, The Assemblies of God, Nig. (2020) 14 NWLR (Pt. 1745) P. 415 Paras E-F.
Learned counsel for the Appellant argued that there is no contradiction between paragraph 23 (iii) & (iv) of the 3rd Respondent Counter Affidavit and the report in Exhibit MAM5. The said Exhibit MAM5 rightly stated that accreditation started after 5:30pm and voting commenced at about 5:45pm. More so, Paragraph 23 (iii) & (iv) of the 3rd Respondent’s Counter Affidavit corroborate Exhibit MAM5 with regard to time of accreditation and commencement of voting. There was no evidence before the trial Court that accreditation and voting did not start at about 5:45pm. Counsel further argued that it is not possible that accreditation of voters and voting started at about 5:45pm is not supported by evidence. There is nothing in Article 18 of the Appellant’s guideline for the primary election in issue that prohibits the electoral committee from adjusting the timing of the election based on late arrival of electoral materials. The adjustment of the timing for the commencement of the election was not done to favor any particular aspirant/candidate. Counsel relied on the case of Odunlami v. Nigerian Army (2013) LPELR-20701 (SC) (P. 71, paras. A-C).
Learned counsel for the Appellant submitted that the trial Court failed in its duty when it raised issues and determined the matter without the Appellant’s contribution amounting to an infringement of the appellant’s right to fair hearing which is an essential component of the principle Audi alteram partem on hearing from both parties before arriving at a decision. Counsel relied on Section 36 (1) of the 1999 CFRN; PDP v. Barr. Sopuluchukwu E. Ezeonwuka & Anor (2017) LPELR- 42563 (SC); Audu v. FRN (2013) LPELR-19897 (SC) (P.14, Paras. C-E); Amadi v. Chinda (2009) 10 NWLR (Pt. 1148) 107; Reg. Trustees of Amorc v. Awoniyi (1994) 7 NWLR (pt. 355) 154. In response, learned counsel for the 1st Respondent submitted that it is a well and long established principle of law that hearsay evidence is inadmissible in legal proceedings. Hearsay evidence is a testimony by a witness who states what other persons have said and not what he experienced, saw and heard personally. This was exactly the thing Levi Emenike Nwoye Esq., did. The testimony of Levi Emenike Nwoye Esq., was undoubtedly not evidence of what he witnessed but information given to him by the Appellant’s National Legal Adviser who himself did not witness any of those events. More disturbing is also the fact that the said Appellant’s National Legal Adviser who gave Levi Emenike Nwoye Esq., the information he deposed to in both affidavits was not part of the committee that conducted the said election. Counsel refer my lords to Exhibit MAM5, particularly page 1243, volume 3 of the Record of Appeal which list the name of the Electoral Committee to the exclusion of Mr Dare Oketade. Counsel also relied on the cases of Ojo v. Gharoro & Ors., (2006) LPELR-2383 (SC); Edosa & Anor v. Ogiemwanre (2018) LPELR-46341 (SC); APC & Anor v. Obaseki & Ors., (2021) LPELR-53538 (CA); Okoli v. State (2021) LPELR-56277 (CA); Obiamulu v. Ogwuego (2020) LPELR-51949 (CA); Orji v. Ugochukwu (2009) 14 NWLR (Pt. 1161) 228 at P. 233.
Learned counsel for the 1st Respondent argued that it is not true as submitted by the Appellant that the issue was raised suo motu by the Court below, and it is very uncharitable to so accuse the learned trial judge. The 1st Respondent had clearly raised the issue. In his Affidavit deposed to on 27th September 2021, the 1st Respondent had stated thus in paragraph:
“That the deponent to the said Further Affidavit who is a legal practitioner in the law firm of V-C Ottaokpukpu & Associates and whose firm was engaged by the 1st Defendant to defend the instant suit on its behalf did not depose to facts within his knowledge neither did he disclose the sources of his information.”
Learned counsel further stated that even if the 1st Respondent had not done so (which he clearly did), the Court below could still deal with it, being a legal issue existing in litigation. Counsel relied on the cases of NAFDAC v. Imoukhuede (2018) LPELR-50525 (CA); Hakair Limited & Anor v. Sterling Bank Plc (2019) LPELR-47638 (CA); Union Bank v. Ndace (1998) LPELR-6193 (CA).
The Appellant in his reply brief argued that by the evidence on the record, Mr. Dare Oketade, Head, legal services of the Appellant, is responsible to give all forms of legal advice to the Appellant, arrange for all litigation as plaintiff or defendant but not only limited to performing other legal functions for the party. A deponent can validly depose to facts he derived from another person. Counsel relied on the case of AG Fed v. Kashamu (No. 1) (2020) 3 NWLR (Pt. 1711) P. 276, Paras. G-H.
Learned counsel for the Appellant in his reply brief submitted that the Court below also erred in law when it went on a voyage of discovery and suo motu state that the Appellant would have made one of the members of the 7 man primary election panel which conducted the primary election a deponent to its counter affidavit and further counter affidavit in opposition to the 1st Respondent’s originating summons and stating that both Levi Emenike Nwoye and Dare Oketade were not eye witness to the primary election of the Appellant, thereby not according the Appellant the opportunity of fair hearing. Counsel relied on Section 36 (1) of the 1999 Constitution; Audu v. FRN (2013) LPELR-19897 (SC) (P. 14, Paras. c-E); Amadi v. Chinda (2009) 10 NWLR (Pt. 1148) 107.
The appellant in these two issues is challenging the decision of the trial Court as relating to the Counter Affidavit and Further Counter Affidavit filed by the appellant at the trial Court to oppose the claim of the 1st respondent. The judgment of the trial Court is at pages 5118 to 5196 of Vol. 6 of the Record of Appeal. In the said judgment, the trial Court held at pages 5183 to 5184 as follows:
“The first issue here is that one Levi Emenike Nwoye, Esq., who is a legal practitioner in the law firm of V.C. Ottaokpukpu of Counsel for the 1st defendant is giving evidence in a case in which he is appearing as Counsel. Also if there is any conflict in affidavit and evidence is called to clarify/resolve such conflict, the counsel who has sworn the affidavit must give evidence. This is undesirable and should be avoided; see Ekpeto v. Wanogho (2005) All FWLR (Pt. 245) 1191, Horn v. Rickards (1963) NWLR 67 and Obadara v. President of Ibadan West District Grade B Customary Court (1965) NMLR 39. The other issue is that the failure of the 1st defendant to depose to the facts of this case by any of the seven (7) members of the 1st defendant’s Primary Election Committee who conducted the primary election in my view shows that either the 1st defendant has something to hide or is not serious about his case. It demonstrates beyond peradventure that the 1st defendant is not serious about this case. I find that the Counter — Affidavit and Further Counter — Affidavit of the 1st defendant are tantamount to hearsay evidence as both the deponent Levi Emenike Nwoyw Esq., a legal practitioner in the law firm of V.C. Ottaokpukpu and his informant Dare Oketade Esq., the National Legal Adviser of the 1st respondent are not eye witness of the conduct of the gubernatorial primary election of the 1st defendant in Anambra State on the 26th June, 2021. The law here is simple; you cannot depose to facts that you did not witness or use the information of a person who was not an eyewitness who did not witness the event. Therefore, the entire averments in both the Counter — Affidavit and Further Counter — Affidavit of the 1st defendant are not admissible in evidence and are hereby discountenanced.”
What then is hearsay? The law is very clear on what hearsay connotes. Section 37 of the Evidence Act, 2011 provides the statutory definition of hearsay. It says: Hearsay means a statement — (a) Oral or Written made otherwise than by a witness in for a proceeding: or (b) Contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it. From the above statutory definition of hearsay evidence, it is in essence, a statement made by a person who is not a witness in a proceeding, or at contained/recorded in a book which by the provision of the Evidence Act is rendered inadmissible. It is also hearsay if it is offered in proof of the truth of the statement. See Subramarian v. Public Prosecutor (1956) 1 WLR 965 at 969.
See also the case of Ize-lyamu Osagie Andrew & Anor. v. INEC & Ors., (2018) 9 NWLR (Pt. 1625) 507 per Okoro, JSC.
In furtherance of this, it is significant to note that an affidavit evidence must be properly handled to avoid it falling into the mode of hearsay. This accounts for why Section 115 of the Evidence Act specifies clearly what the contents of affidavits should address. This Section 115 of the Evidence Act provides:
115 (1) Every affidavit used in the Court shall contain only a statement of fact and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
(2) An affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion.
(3) When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
(4) When such belief is derived from information received from another person the name of his informant shall be stated and reasonable particulars shall be given respecting the informant and the time, place and circumstance of the information.
This Section of the law was deliberated upon by the Supreme Court and its application was given in the case of Alhaji Yekini Jimoh v. The Hon. Minister FCT & Ors. (2018) LPELR – 46329 (SC), as follows.
“A deponent of an affidavit in any proceeding before a Court of law is a witness in the matter. Section 115(1) of the Evidence Act, 2011 enjoins the deponent as a witness, to depose to facts in an affidavit that “either of his own personal knowledge or from information which he believes to be true.” It is not enough to set out in the preamble paragraphs of an affidavit for the deponent to restate the facts that he has been authorized either by his principal or employer, and the client to make the affidavit; and that he derived the facts averred in the affidavit in the course of his employment and/or from his personal knowledge and/or information generally. For every assertion in a specific averment the deponent, consistent with Section 115 (1), (3) & (4) of the Evidence Act, must disclose with particulars his source of information and belief.”
In the instant case, the affidavit involved are the Counter — Affidavit and the Further Counter Affidavit of the 1st respondent. These Counter Affidavit are those sworn to by Levi Emenike Nwoye Esq., one of the legal practitioners representing the appellant. The Counter Affidavit is at pages 610 – 622 of Volume 2 of the Record while the Further Counter — Affidavit is at pages 1951 to 1967 of Vol 4 of the Record of Appeal.
The learned trial judge expressed concern over the act of a counsel for a party deposing to an affidavit in a case he is handling. This no doubt, bothers on ethics but the issue is the Counter Affidavit and Further Counter—Affidavit are hearsay evidence. From the Counter Affidavit, the deponent prefaced his depositions as follows:
1. I am the deponent herein.
2. I am a counsel in the law firm of V.C. OTTAOKPUKPU & ASSOCIATE the law firm representing the 1st Defendant in this suit before this Honourable Court and by virtue of my position, I am abreast and conversant with the facts of this case.
3. I am one of the counsel being led by Vincent C. Ottaokpukpu Esq., the Principal learned counsel leading me and other legal practitioners representing the 1st Defendant/Respondent in this Suit.
4. I have the consent and authority of the 1st defendant in this suit and my principal Vincent C. Ottaokpukpu Esq., the Principal learned counsel representing the 1st defendant to depose to the facts of this affidavit.
5. The 1st defendant (through its National Legal Adviser Mr. M. Dare Oketade, Esq., being the Head of Legal Services) was shown the Affidavit in support of the Originating Summons and he read it and understood same.
6. In reaction to the said Affidavit in support of the Originating Summons, I was present at a meeting held at the law firm of V.C. OTTAOKPUKPU & ASSOCIATES at No. 30 Koforidua Street, Wuse Zone 2, Abuja on the 30th July 2021 at about 2:30pm to 5:pm, and I was reliably informed by the 1st defendant represented by National Legal Adviser Mr. Dare Oketade Esq., of APC National Headquarters, No. 40 Blantyre Street, Wuse II, Abuja, beinq the Head of Legal Services of every facts deposed and summing up to the deposition in this affidavit of which I believe same to be true, correct and in qood faith, that … (See pages 610 — 611 of the Record)
In the Further Counter — Affidavit, the same deponent said as follows:
1. I am the deponent herein.
2. I am a Legal Practitioner presently engaged in the private practice, in the law firm of V.C. Ottaokpukpu & Associates, Counsel to the 1st Defendant in this Suit and in that capacity, I am very conversant with the facts of this case and except where otherwise stated, the facts herein deposed are within my knowledge.
3. This suit is a pre-election matter which was commenced by Originating Summons filed on the 8th July, 2021 and served on the 1st defendant on 26th July 2021.
4. The 1st defendant upon receipt of the Originating Summons briefed and instructed the law firm of V.C. Ottakpokpu & Associates to defend the suit to its logical conclusion.
5. The 1st defendant (through its National Legal Adviser Mr. M. Dare Oketade, Esq., being the Head of Legal Services) was further shown the Affidavit in support of the Originating Summons in view of emerging facts in this suit and he read it and understood same again.
6. After the proceedings of this Court on 22/9/2021 when this matter came up, I was present at a meeting held at the law firm of V.C. Ottaokpukpu & Associates at No. 30 Koforidua Street, Wuse Zone 2, Abuja on the same 22nd September, 2021 at about 3:30pm to 5:pm, and I was reliably informed by the 1st defendant represented by National Legal Adviser Mr. Oketade Esq., being the Head of Legal Services of every facts deposed and summing up to the deposition in this Further Counter — Affidavit of which I believe same to be true, correct and in good faith, that: …
(See pages 1951 — 1952 of the Record of Appeal).
The law is well settled beyond doubt as presented by the Supreme Court in the case of Alhaji Yekini Jimoh v. The Hon. Minister FCT & Ors., (supra), a deponent in any affidavit before the Court must deposed to the facts either of his own personal knowledge or from “information which he believes to be true”. If the facts are of his own personal knowledge, there is no extra burden explaining further complexion or intimate circumstances of his knowledge of the facts other than to state how personally he was involved. In a situation however, where his deposition is based on any fact derived from other sources, he must as a duty or obligation set forth explicitly the facts and circumstances of his belief. This is the hallmark of Section 115(3) of the Evidence Act. This law is plain without fear of repetition, the law specifically provides thus:
(3) When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
(Underlining mine, for emphasis).
The deponent of the Counter — Affidavit and the Further Counter Affidavit in the instant case did not deposed to the facts therein from his own personal knowledge. It is from the information he got from the appellant represented by “The National Legal Adviser Mr. Dare Oketade Esq., being the Head of Legal Services of every fact deposed in the Counter Affidavit”. There is no line of that narration that suggests that Mr. Dare Oketade supplied the facts to him from his personal knowledge. This clearly is contrary to the demand and requirement of Section 115(3) of the Evidence Act 2011, which requires the setting forth explicitly the facts and circumstances forming the ground of his belief. To this, it is excellently obvious that this deponent of the Counter — Affidavit has given no direct evidence but hearsay evidence.
Hearsay evidence is inadmissible by virtue of Section 38 of the Evidence Act, 2011 and any Court of record has the bounden duty to reject any evidence outlawed by the Evidence Act without waiting for any party to raise the issue formally. Justice is not a mechanical odd commodity. It is justice according to law. The trial Court was then right to say that the Counter Affidavit placed before the Court were hearsay and of no value to the consideration of the issue before him. From the foregoing therefore, issues one and six are hereby resolved against the appellant.
Even then the Counter — Affidavit did not counter off the fact that there was no valid primary election.
Issues Two Three & Seven:
These issues are – Whether the appellant’s primary election may be invalidated merely on the ground that the 2nd respondent was not present at the time the election commenced or that accreditation, screening and voting did not commence within the time frame stipulated under the appellant’s guidelines;
Whether the learned trial judge was right in holding that the appellant acted in collusion with the 3rd respondent in the conduct of its primary election when there was no evidence on record to sustain that finding; and
Whether the learned trial judge was right to entertain the action by way of originating summons inspite of the fact that the facts in support of the 1st respondent’s case were hostile and substantially disputed by the appellant and 3rd Respondent.
Learned counsel for the Appellant submitted that the learned trial judge was wrong when he held that the 2nd Respondent’s failure to monitor the primary election was contrary to Section 85 (2) of the Electoral Act, 2010 (As Amended) and Regulation 17 (vi) of the Appellant’s guidelines for the nomination of candidates for the Anambra 2021 Gubernatorial Election direct primaries. He further stated that this provision gives INEC the discretion to attend the primaries or not, considering the use of the word “may”. It may choose to or not attend and to adopt other means of obtaining the records mandated under Section 86 (1) of the Electoral Act. When a legislation uses the word “may” it is simply permissive and not compulsory. Counsel relied on the cases of Chukwuemeka Odumegwu Ojukwu & Anor v. Independent National Electoral Commission (INEC) & Ors (2015) LPELR-40652 (CA); Oyebode & Anor v. Ogundele Gabriel & 6 Ors (2012) 48 WRN 49; LPELR-8693 (CA); Senator lyiola Omisore & Anor v. Ogbeni Rauf Aregbesola & Ors (2015) LPELR-24803 (SC) (Pp. 68-69, paras. F-B); Shikafi v. Yari (2016) LPELR- 26050 (SC) (Pp. 19-20, para. C).
Learned counsel for the Appellant also argued that the commencement of the primary election outside the time prescribed by the guidelines of the Appellant was not done to prejudice any of the aspirants/contestants. The commencement of the primary election outside the time prescribed by the guidelines of the Appellant was occasioned by the late arrival/distribution of electoral materials. Counsel invites this honorable Court to interfere with the findings of the learned trial judge that is not based upon evidence. Counsel relied on the cases of General Muhammadu Buhari v. INEC & Ors (2008) LPELR-814 (SC); Osun State Independent Electoral Commission & Anor v. Action Congress & Ors (2010) LPELR-2818 (SC).
Learned counsel for the Appellant submitted that the Court below was wrong when it proceeded to enter judgment in favor of the 1st Respondent under the Originating summons procedure when from the actual dispute presented before the Court, facts are substantially in dispute and hostile. Thus, Originating Summons proceedings is not a proper platform to agitate the 1st Respondent’s cause of action. Counsel further stated that the determination of the 1st Respondent’s suit does not revolve on mere resolution of questions of law, but entail resolution on substantial dispute of facts. The 1st Respondent’s Affidavit in support of the Originating Summons shown, without doubt that the suit cannot be determined without recourse to resolution of conflicting facts, especially when considered along with the various counter affidavit before the lower Court. Counsel relied on Suleiman Atago v. Mr. Ibiso Nwuche & Ors (2012) LPELR- 19656 (SC) particularly at P.19; Suleiman Atago v. Mr. Ibiso Nwuche & Ors (2013) 3 NWLR (Part 1341) 337 at 360 Paras. E; Olly v. Tunji (2013) 10 NWLR (Part 1362) 275 at 328, paras. C-E; PDP v. Odimayo Gbadebo Akinola & Ors (2018) LPELR-43968 (CA);Order 3 Rule 8 of the Federal High Court (Civil Procedure) Rules 2019.
In response, learned counsel for the 1st Respondent submitted that it is crystal clear that the Appellant’s disputed election was conducted in clear violation of the laws and guidelines regulating same. The law has long been settled that political parties must obey the constitution, Electoral Act as well as their constitution and guidelines they made for themselves and where any action is done contrary to the laid down rules, the Courts will intervene and nullity such an action. The Courts have in plethora of decided cases held that political parties must obey their own constitution which they made themselves, as the Court will not allow them to act arbitrarily or as they like. Counsel relied on the cases of Tarzoor v. loraer (2016) 3 NWLR (Pt. 1500); Shinkafi v. Yari (2016) 1 SC (Pt. II) 1; PDP v. Sylva (2012) 13 NWLR (Pt. 1316) 85; Marafa & Ors v. Dan Alhaji & Ors (2019) LPELR 47012 (CA); APC v. Karfi (2018) 6 NWLR (Pt. 1616)479; Akpatason v. Adjoto & Ors (2019) LPELR-48119 (SC); Mato v. Hember & Ors (2018) 5 NWLR (Pt. 1616) 258; (2018) All FWLR (Pt. 925) 146; (2017) LPELR-42765(SC).
Learned counsel for the 1st Respondent further submitted that the importance of the presence of the 2nd Respondent to monitor the primary election is fundamental to secure a free and fair primary election. The Appellant and the 3rd Respondent knew this fact and that was why their grand plan was to keep the officials of the 2nd Respondent away from the accreditation and voting exercise so as to confer undue advantage and rig the 3rd Respondent into sham victory. Counsel relied on the cases of Olly v. Tunji & Ors (2012) LPELR-7911; All Progressive Congress (APC) & Ors v. Emakpor & Anor (2019) LPELR-48299 (CA) PP. 18-20 Paras. E-B; Amaechi v. INEC & Ors (2008) LPELR-446 (SC); Omajali v. David & Ors (2019) LPELR 49381 (SC); Peoples Democratic Party v. Hon. Dr. Harry N. Oranezi & Ors (2017) LPELR-43471 (SC).
The Appellant in his reply brief submitted that it is improper for the trial Court to hold as it did that the election was not validly conducted when the INEC officials were present at the venue and produced a report of the said election. The decision of the trial Court is against the weight of evidence. Learned counsel argued that an appellate Court does not interfere with the findings of fact made by a trial Court except in exceptional circumstances such as when the findings are not based on evidence adduced.
Counsel relied on the cases of Orhena Adugu Gbileve & Anor v. Mrs. Ngunan Addingi & Anor (2012) LPELR-14281 (CA); Osun State Independent Electoral Commission & Anor v. Action Congress & Ors (2010) LPELR-2818 (SC).
Learned counsel for the Appellant submitted that originating summons is reserved for issues like the determination of short questions of construction and not matters of controversy. The determination of the 1st Respondent’s suit does not revolve on mere resolution of questions of law, but entail resolution of substantial dispute of facts. The 1st Respondent’s Affidavit in support of the originating summons shown without doubt that the suit cannot be determined without recourse to resolution of conflicting facts. Counsel relied on Johnson v. Mobil Prod. (Nig.) Ltd (Supra) @ 493 para. E.
Under the Electoral Act, specifically Section 87 thereof, a political party seeking to nominate candidates for elections under the Act, shall hold primaries for all the aspirants to all elective positions. The choice of procedure for party primaries is that of the political parties. The law however, placed on the political parties the duty of ensuring that all the aspirants are given equal opportunity at the primaries of being voted for by the members of the parties. To achieve this, every political party is enjoined under the Electoral Act to have guidelines to govern the exercise. Furthermore, the 2nd respondent, Independent National Electoral Commission (INEC) must be notified of such an exercise at least 21 days to the exercise. When notified, the 2nd respondent INEC may now attend to observe the exercise. There is nothing in the law that requires any external body other than the political parties to nominate/sponsor a candidate for an election. It is fundamental and well settled that the political parties have the monopoly of nominating or sponsoring their own respective candidates for an election under our laws. There is a litany of authorities of our apex Court of which Pali v. Abdu & Ors., (2019) LPELR – 46342 (SC), comes handy, to the effect that sponsorship or nomination of a candidate for election is within the domestic spheres of the political parties over which the Courts are restrained from exercising jurisdiction. The Court can only be invited by any party member aggrieved of the conduct of a political party in the direction under Section 87 (9) of the Electoral Act, 2010 (as amended).
In the case of Pali v. Abdu & Ors. (supra), the Supreme Court Per Peter Odili, JSC, took time to outline the settled position of the law on this issue. The Court held as follows:
“…the fundamental angle is that the nomination and sponsorship of a candidate for election into a political office is within the realm of a domestic affair of a political party over which the Court has no jurisdiction. It is with that in view that there is a reiteration that Section 87 (9) of the Electoral Act 2010 (as amended) which provides for the selection or nomination of a candidate by a political party has to be properly invoked for it to be of use to the litigant seeking its relieving features in the ventilation of his grievances over the nomination or selection by the relevant political party for which the person seeking redress can hang onto. This is because that statutory provision has some conditions which must be complied with before a valid invocation can be made. See Agi v. PDP (2017) 17 NWLR (Pt. 1595) 386. I shall for clarity quote the said Electoral Act, Section 87 (9) thereof thus: “(a) That there must first have been a primary for the selection or nomination of a candidate by a political party; (b) The exercise for the primary must have been in respect of an election; (c) The complainant must be an aspirant who ought to have taken part in his political party’s primaries and it must be shown that the political party designate did not comply with a provision of the Electoral Act or its political guidelines for selection done”. In fact, the localization of the nomination and sponsorship of a candidate by his political party within the confines of that party and not outside it and clearly outside the grasp of the Courts has been given judicial acknowledgment since the jurisdiction of the Court does not exist in respect of such matters or disputes arising therefrom challenging the authority of the political party. The situation is so clear that I shall cite a few authorities to showcase the position of things. See Shinkafi v. Yari (2016) 7 NWLR (Pt. 1511) 340 at 373 paras. E — F wherein the Supreme Court held as follows: “A community reading of Section 85 and 87 of the Electoral Act 2010 (as amended) clearly show that they regulate the nomination of candidates for election through the internal mechanism of each political party. In other words, issue of nomination and sponsorship of candidates by political parties for election fall within the internal affairs of political parties and are therefore not justiceable…” While per Onnoghen, JSC, (as he then was) stated as follows in Shinkafi v. Yari (supra) “It is settled law that the issue of nomination of a candidate by a political party for any election is within the exclusive preserve of the political parties and that the Courts have no jurisdiction to interfere therein as decided in a number of cases including Onuoha v. Okafor & Ors., (1983) NSCC 494; Dalhatu v. Turaki (2003) 15 NWLR (Pt. 843) 310”. At the risk of flogging a settled point is to state that the Court does not run the affairs of the political parties rather what the Court is empowered to do while it recognizes the supreme position of the political party to determine who its candidate for election is, that party must do so without impunity but must effect that power within the tenets of its party constitution. I shall cite Onuoha v. Okafor (1983) NSCC 494, where the full picture was well captured and that case Obaseki, JSC, stated thus: “The party like any other corporation operates within the guidelines. The powers and duties set out in the constitution. All its members are bound by its provisions and their rights and obligations created by their Constitution can be remedies as provided by the …Failure to sponsor the appellant cannot be said to be in breach or ultra vires the powers of the National Progressive Party because the appellant won the nullified nomination or because the appellant paid N5,000 to contest the nomination. The National Progressive Party being a Registered Political Party has the same capacity as a natural person to make its choice of candidate for sponsorship”. And His Lordship furthermore has cited in support Lord Denning as holding in Institution of Mechanical Engineers v. Cane (1961) A.C. 696 at 723 in expounding this principle thus and I quote him “But when you are dealing with voluntary association of individuals the doctrine of ultra vires has no place”. The import of the above abstract vis-a-vis this matter is that the choice of candidates by political parties for elective offices being a political issue is governed by the rules, guidelines and constitution of the political party concerned and are matters of internal affairs of the political party concerned. It is not to be questioned before any Court as it is non-justiceable. See Onuoha v. Okafor, and again Dalhatu v. Turaki (supra)”. Those guidelines were followed by this Court in the case of Agi v. PDP (2017) NWLR (Pt. 1595) 386 at 459 – 460 and expatiated on the said rules thus: “A Political party is like a club; a voluntary association. It has its rules, regulations, guidelines and constitution. Members join the party of their free will. By joining they have freely given their consent to be bound by the rules, regulations, guidelines and Constitution of the party. The rules of the party must be obeyed by all members of the party, as the party’s decision is final over its own affairs. When it comes to nomination of its candidate for election, the National Executive Committee of the party has the final say and whenever it approves or endorses a candidate to contest on the parties’ platform, he stands nominated and no other member can oppose that approval or nomination. The party is therefore supreme and has the final say or decision. (PDP v. Sylva (2012) 3 NWLR (Pt. 1316) 85 referred to)”. Members of a political party would do well to understand and appreciate the finality of a political party’s decision over its domestic or internal affairs. The Court would only interfere where the party has violated its own rules.”
So it is that the Court can only interfere where the party has violated its own rules.
In the instant case, the complaint taken to the Court by the 1st respondent is as captured in the Originating Summons at pages 3 to 9 of the Record of Appeal. The three questions framed for determination are explicitly laid out at page 5 of the Record as follows:
Question No: 1
Having regard that Section 87 of the Electoral Act 2010 (as amended) imposes obligation on political parties in Nigeria to conduct primary elections for the purpose of selecting or nominating its candidate to fly its flags at the elective positions in Nigeria, including gubernatorial election in Anambra State, did the 1st Defendant conduct the primary election for election of the governorship candidate with actual accreditation of voters, voting, collation of votes and announcement of results with the provisions of the Electoral Act 2010 (as amended), the Constitution and the guidelines of the said political party?
Question No: 2
Having regard that Section 85 of the Electoral Act, 2010 (as amended) and Regulation 17(vi) of 1st Defendant’s guideline for the nomination of candidates for the Anambra 2021 Gubernatorial Election – Direction Primaries (Option A4) impose obligations on 2nd Defendant to attend and monitor the gubernatorial primary election of 1st Defendant in Anambra State for forthcoming 6th November, 2021 gubernatorial election, did the 2nd Defendant attend and monitor the 1st Defendant’s primary election for the emergence of its gubernatorial candidate for the 6th November, 2021 gubernatorial election?
Question No: 3
Whether a political party that fails to conduct its primary election in accordance with the provisions of the Electoral Act 2010 (as amended), the Constitution of the political party and the guidelines of the political party, such as the 1st Defendant conducting its primary election in absence of accreditation of voters, actual voting or casting of votes, collation of votes and announcement of results of primary election based on actual votes cast and counted, can validly field candidate to fly its flag at the gubernatorial election for Anambra State scheduled for 6th November, 2021, or at any subsequent date?
These questions no doubt are within the realm of the jurisdiction of the Court. The Constitution of the Appellant (APC) was exhibited as Exhibit B while the party’s Guidelines is Exhibit C.
Exhibit C which is the GUIDELINES FOR THE NOMINATION OF CANDIDATES FOR THE ANAMBRA 2021 GUBERNATORIAL ELECTION – DIRECT PRIMARIES (OPTION A4), was carefully laid out by the appellant. See pages 72 of the Record of Appeal. By paragraph 18 of the Guidelines, method of voting was clearly specified for ease of reference. Paragraph 18(d) to (l) reads as follows.
d. Voting shall be done in line with the modified Open-Secret Ballot System (Option A4) literarily known as Direct Primaries.
e. Accreditation shall be done by the Returning Officer between the hours of 8:00am to 12:noon. Any member, candidate or agent who arrives after the commencement of voting shall not be accredited or allowed to vote.
f. Accreditation of members for voting shall be by APC membership registration card/slip and the Returning Officer/Polling Officers shall apply indelible ink to the cuticle of the left thumb on the left hand of the voter after voting.
g. At 12:00 pm or whenever accreditation ends, the Returning Officer shall declare accreditation closed, but ensure that all eligible members already on the queue for accreditation by 12:00 pm are accredited.
h. Count the number of accredited voters, in the Register of Members and enter the figure into the APC official result sheet.
i. Voting shall commence immediately accreditation ends and counting till 2:00pm when voting closes. Voters shall queue up at the voting center.
j. No member shall vote for more than one aspirant and where the votes cast exceed the number of accredited voters, the election shall be declared void by the Ward Electoral/Returning Officer on behalf of the Electoral Committee and the exercise may be repeated.
k. After counting the votes, the result shall be publicly announced and the scores of the candidates properly entered both in words and figures on the APC official result sheet.
l. Any result not recorded on the official result sheet shall not be accepted.
These guidelines were not foisted on the appellant. It was the guidelines laid down by the appellant, its intent crafted in the preamble to the Guidelines is as follows:
PREAMBLE:
Only political parties, according to Section 221 of the Constitution, shall “canvass for votes for any candidate at any election”. This Section strengthens the Party’s (All Progressives Congress) objective in Article 7 (IV) of its Constitution which seeks to attain political power through legitimate, democratic and constitutional means.
It behoves the party therefore, to lay down guidelines for its members seeking to contest elections into public offices in the country. The guidelines will, without prejudice, conform to the provisions of the party’s Constitution, the 2010 Electoral Act as amended and the Constitution of the Federal Republic of Nigeria 1999 as amended.
These guidelines are not laid down for fun or to be breached by the political party or its machineries. They are to be complied with. Compliance with the laws, the constitution and the Guidelines set by the political parties is what guarantees intra party democracy. In the case of Akpatason v. Adjolo & Ors., (2019) LPELR – 48119 (SC), the Supreme Court per Galinje JSC, held as follows:
“The primary election of the 2nd Respondent are regulated by its guidelines. This Court has in a number of cases held that parties are bound by the Constitution of Nigeria, the Electoral Acts and their own constitution and guidelines. Where they act contrary to the provisions of the law and the guidelines which they have enacted for themselves, such actions will be declared invalid. In PDP v. Sylva (2012) 13 NWLR (Pt. 1316) 85 at 125, this Court per Rhodes-Vivour held: – “Where the political party conducts its primary and dissatisfied contestant at the primary complains about the conduct of the primaries, the Courts have jurisdiction by virtue of the provisions of Section 87(9) of the Electoral Act to examine if the conduct of the primary elections was conducted in accordance with the party’s constitution and guidelines. This is so because in its conduct of its primaries, the Courts will never allow a political party to act arbitrarily or as it likes. A political party must obey its own constitution”. See Hope Uzodinma v. Sen. Osita Izunaso (2010) 5 MJSC (Pt. 1) 27, (2011) 17 NWLR (Pt. 1275) 30.”
The core of these decisions is the fact that a political party is obligated to comply with the Constitution and Guidelines set down by the political party for its primary election. The issue is not principally on whether the primary should be invalidated because the 2nd Respondent was not on ground or present to monitor the primary election. The whole issue is on the failure of the appellant to comply with its guidelines on primary election. A look at the Guideline earlier captured in this judgment will show what the political party desired to happen. Time and date were set for the primary election. The 2nd Respondent and other stakeholders from the evidence before the Court were duly informed. Evidence was available that the 2nd Respondent deployed its personnel to monitor the primary election and when no election was held at about 5:30pm, they left the scene. The appellant did not deny that they violated their guideline on time for accreditation and voting. Accreditation of members and voting are supposed to be wrapped up between 8:am and 2:00pm on the day of election. It was so clear that by 5:30 pm when the 2nd Respondent left the venue of the election the party officials who were to conduct the election were not on ground along with the materials for the election. If by 5:30 pm they were not at the venue to conduct the election process that ought to be from 8:am in the morning, where is the compliance with the party guidelines. The violation of the guidelines from the circumstances of this case is fundamental and fatal in this case. The breach is enough to void anything said to be done on that date and from the finding of the trial Court, there is no evidence that the primary election was conducted as required on the day in question. It follows therefore, that these issues raised are firmly to be resolved against the appellant.
Furthermore, the comment of the trial Court that the appellant acted in collusion with the 3rd Respondent in the botched primary election does not form part of the ratio of the decision appealed against. Such comments made in passing are basically obiter dictum and cannot be the basis for a reversal of the decision in the instant case. See Omisore v. Adeleke & Ors., (2015) NWLR (Pt. 1482) 205 and the recent case of Aondoakaa v. Obot & Others (2021) LPELR – 56605 (SC).
On the issue of Originating Summons, the law is settled that it ensures a quick disposal of a suit especially an election matter which requires some measure of urgency but where the proceedings are hostile, it cannot be used. See Jev. & Anor v. lyortuom & Ors., (2014) LPELR – 23000 (SC). The nature of Originating Summons was well explained by the Supreme Court in the case of Inakoju v. Adeleke (2007) LPELR – 1510 (SC), where Tobi, JSC, held:
“The action was commenced in the High Court by originating summons. Commencement of action by 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 or pleadings. See Din v. Attorney 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, Keyamo v. House of Assembly, Lagos State (2002) 18 NWLR (Pt. 799) 605. In Famfa Oil Limited v. Attorney General of the Federation (2003) 18 NWLR (Pt. 852) 453, Belgore, JSC, (as he then was), said at page 467: “The very nature of an originating summons is to make things simpler for hearing. It 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 pleadings 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. “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 Oloyo v. Alagbe (1983) 2 SCNLR 35, Doherty v. Doherty (1967) 1 All NLR 245, Famfa Oil Limited v. Attorney — General of the Federation (supra). In other words, an originating summons will not lie in favour of a plaintiff where the proceedings are hostile in the sense of violent dispute. In originating summons, facts do not have a pride of place in the proceedings. The cynosure is the applicable law and its construction by the Court. The situation is different in a trial commenced by writ of summons where the facts are regarded as holding a pride of place and the fountain head of the law, in the sense that the facts lead to a legal decision on the matter. That is not the position in proceedings commenced by originating summons where facts do not play a central role but an infinitesimal role, if at all. I seem to be repeating myself. It is intentional. I should not take this issues further as the parties have not joined issues on whether the action was properly commenced by originating summons. All I want to highlight or bring to the fore is the inconsequential status of facts in action commenced by originating summons, and I do hope I have made the point. It is a useful baseline to draw from though not a barometer.”
In the instant case, the material facts placed before the Court from the record before us is not riotous or hostile. Originating Summons therefore, was properly deployed in this proceedings. The issues here raised are therefore resolved against the appellant.
Issues Four, Five and Eight:
These issues are – whether the learned trial judge erred in law when it discountenanced the preliminary objection of the appellant, assumed territorial and substantive jurisdiction to entertain and determine 1st Respondent’s originating summons;
Whether the Court below was not divested of jurisdiction to hear and determine the suit having regard to the fact that necessary parties to the action were not joined — parties who on their part claimed victory in the primary election and had instituted action to that effect — a matter to which the attention of the learned trial judge was drawn; and Whether the Court below did not err when it granted the reliefs sought by the 1st Respondent despite not having the jurisdiction over same and the absence of evidence in support of the case of the 1st Respondent.
Learned counsel for the Appellant submitted that the rules of Court do not confer or donate jurisdiction on a Court of law but the constitution of Nigeria 1999 (as amended) or the statute creating the Court. This position has always been emphasized by the Courts. Counsel relied on the cases of Odejide & Anor v. AMCON (2017) LPELR-42005 (CA); Mohammed v. FRN (2018) LPELR-43908; Section 3 (1) of the Constitution of Nigeria (as amended). Counsel argued that a Court would not have jurisdiction to entertain an action in which the cause of action arose in a state outside that which the Court is located. Counsel relied on the cases of Idemudia v. Igbinedion University, Okada & Ors (2015) LPELR-24514 (CA); Lemit Engineering Ltd v. RCC Ltd (2017) LPELR-42550 (CA) (PP.20-24 Paras. C-F); International Niger Build Construction Co. v. Giwa (2003) 13 NWLR (Pt. 836) p. 69; Tukur v. Government of Gongola State (1989) 4 NWLR (Part 1770 Page 514 at 556-557 Paragraphs F-A; Audu v. INEC (2019) 17 NWLR (Pt. 1702) Page 379 at 395.
Learned counsel for the Appellant submitted that the lower Court was wrong to have heard and determined the 1st Respondent Originating Summons without the other aspirants who participated in Appellant’s primary election of 26/6/2021, in breach of their right to fair hearing guaranteed under Section 36 of the 1999 Constitution (as amended) and by so doing the Court below disregarded and discountenance the binding decisions of the Supreme Court relating to failure of the 1st Respondent as plaintiff to join other aspirants in the primary election of the Appellant held on 26/6/2021, which was duly brought to the attention of the trial Court. Counsel relied on the cases of Ikechukwu v. Nwoye (2015) 3 NWLR (1446) 207-420 at Pg. 367; Akpamgbo Okadigbo v. Chidi (No. 1) (2015) 10 NWLR (Pt. 1466) 171 at 205; PDP & Ors v. Sopuluchukwu Ezeonwuka & Anor (2017) LPELR-42563; Chidozie Nwankwo v. APC & 2 Ors, suit No. FHC/ABJ/CS/666/2021; Dr. Chidozie Nwankwo v. APC & Anor, suit No. FCT/CV/1431/2021; Hon. Maxwell Samuel v. APC & 3 Ors, suit No. FHC/AWWCS/48/2021; Azuibike v. PDP (2014) 7 NWLR (Pt. 1406) at Page 319 Paras. D-E; PDP v. Barr. Sopuluchukwu Ezeonwuka (2017) LPELR-42563 (SC); Ikechukwu v. Nwoye (2015) 3 NWLR (1446) 207-420 at 367; APC v. Uduji (2020) 2 NWLR Pt. 1709 Pt. 546 at 572; Order 9 Rule 2 (b) of the Federal High Court (Civil Procedure) Rules 2019.
Learned counsel for the Appellant finally submitted that the trial judge’s failure to properly evaluate the evidence placed before him by the depositions made by the appellant in their Counter-Affldavit, Further-Affldavit and a further affidavit occasioned a miscarriage of justice to the case of the appellant. This Court is bound by the constitutional provisions to ensure that justice is done between parties in a case. Counsel urged your lordship to resolve all the issues in this appeal in favor of the Appellant and set aside the decision.
In response, learned counsel for the 1st Respondent argued that for a Court to join a person as a defendant, the plaintiff must have a claim against the person seeking to be joined. Hence, where there is no such claim against the person sought to be joined, there can be no jurisdiction to make the order. A look at all the claims of the 1st Respondent clearly shows that he has no complaint whatsoever against his co-aspirants who were equally short-changed like him by Appellant acting in concert with the 3rd Respondent. Counsel relied on the cases of Ajayi v. Jolayemi (2001) 10 NWLR (Pt. 722) 516, 520; Dantsoho v. Mohammed (2003) 6 NWLR (Pt. 817) 457, 475; Guda v. Kitta (1999) 12 NWLR (Pt. 629) 21, 29; All Progressive Congress v. Action Democratic Party & Ors (2021) LPELR-54280 (CA); Andrew Osagie Ize-Iyamu v. Action Democratic Party & Ors., (2021) LPELR-54292 (CA); Buhari & Ors v. Obasanjo & Ors., (2003) LPELR-24859 (SC).
Learned counsel for the 1st Respondent submitted that the various judicial divisions of the Federal High Court were created for administrative purposes and for the convenience of litigants only and not to limit the territorial jurisdiction of this Honorable Court as obtainable in the state High Courts. The issue of which judicial divisions of this Honorable Court can exercise jurisdiction in this case is governed by the provisions of Order 2 of the Federal High Court (Civil Procedure) Rules 2019, this being an intra-state matter. Counsel relied on the cases of Agaba v. FRN (2021) LPELR-55667 (CA); Biem v. SDP (2019) 12 NWLR (Pt. 1687) 377; Omajali v. David (2019) 17 NWLR (Pt. 1702)438; Adetona v. I.G Ent. Ltd (2011) 7 NWLR (Pt. 1247) 535; CBN v. Interstella Comm. Ltd (2018) 7 NWLR (Pt. 1618) 294; Abraham v. Akeredolu (2018) 10 NWLR (Pt. 1628) 592.
Learned counsel for the 1st Respondent submitted that annexed documents in an originating summons provide the hanger upon which depositions in the affidavit would be considered since oral depositions cannot challenge or override the contents of a document. Counsel relied on the cases of First Bank v. May Clinic (2001) 4 SCNJ 1 at 12; Shipcare Ltd v. Owners of M. V. Fortunato (2003) FWLR (Pt. 179) 1238, 1256; UBN Ltd v. Ozigi (1994) 3 NWLR (Pt. 333) 385; Nnubia v. AG Rivers State (1999) 3 NWLR (Pt. 593) 82; Ogundele & Ors v. Agiri & Ors (2009) 18 NWLR (Pt. 1173) 219, 239, Para. A; Nguruoje & Anor v. El-Sudi & Ors (2012) LPELR-20865 (CA) 97; Lafia Local Government v. The Executive Gov. Nassarawa State & Ors (2012) 17 NWLR (Part 1328) 94 at 129 F-G; Jev & Anor v. lyortom & Ors., (2014) LPELR-23000 (SC); Agbaoka v. INEC (2008) 18 NWLR (Pt. 1119) 489 at 539. Counsel finally submitted that given the limited time for adjudication of pre-election matters, the Appellate Courts have in myriad of cases endorsed the procedure of Originating Summons as most suitable in determination of questions such as those raised in the instant case. Counsel relied on the case of Zakarai v. Muhammad & Ors (2017) LPELR-42349 (SC). Counsel urged this Court to dismiss the appeal for lacking in merit.
Learned counsel for the Appellant in his reply brief submitted that Section 6 (1) of the Constitution of Nigeria 1999 (as amended) provides: “the judicial powers of the federation shall be vested in the Courts to which this section relates, being Court established for the federation”. While Section 6(2) provide thus: “the judicial powers of a state shall be vested in the Courts to which this section relates, being Courts established, subject as provided by this constitution, for a state”. It goes to say that a State High Court or a Federal High Court in one state cannot competently adjudicate over a cause of action in another state. Counsel relied on the cases ofLemit Engineering Ltd v. RCC Ltd (2017) LPELR-42550 (CA) (PP. 20-24, Paras. C-F); Audu v. INEC (2019) 17 NWLR (Pt. 1702) page 379 at 395.
Learned counsel further argued that the 1st Respondent’s failure to add or join other aspirants to wit: Onunkwo Johnbosco, Chidozie Nwankwo, Paul Orajiaka, Bennet Etiaba, Geoff Onyejegbu, Azuka Okwuosa, Maxwell Okoye, Okonkwo Godwin, Madu Edozie, Amobi Nwokafor, lgwebuike Ifeanyi and Mokelu Ikeobasi to the present action for the Court below to be properly constituted, occasioned a miscarriage of justice. Counsel relied on the case Ikechukwu v. Nwoye (2015) NWLR (4446) 207-420 at 367. Counsel urged the Court to allow the appeal.
The law is well settled that jurisdiction is the soul of adjudication. Every Court must be endowed with jurisdiction to hear a case before it undertakes the adventure of hearing a case. It is highly important to note that jurisdiction is determined by statute and generally jurisdiction can be challenged if the action is not commenced by due process, the Court is not properly constituted or when the cause is not within the statutory powers of the Court to handle. See Madukolu v. Nkemdilim (1962) LPELR – 24023 (SC), Jerry Chung & Ors. v. Jos Electricity Distribution Plc (2021) LPELR – 55327 (SC), Okorocha v. UBA Plc (2018) LPELR – 45122 (SC). Fundamentally, every Court’s jurisdiction is decreed by the Constitution or a statute. In order to determine whether a cause of action falls within the jurisdiction of a Court as provided for in the Constitution or the statute that created it, regard shall be had to the Originating Process only. Whereas in the instant case the action is commenced by the Originating Summons, it is only the Originating Summons and the affidavit in support that would be considered. This is because it is the plaintiff who invokes the constitutional right for a determination of his rights. See A.G. Federation v. Guardian Newspapers Ltd & Ors., (1999) LPELR – 3162 (SC), Michael K. Aondoakaa, SAN, v. Emmanuel Bassey Obot & Anor (2021) LPELR 56605 (SC).
In the instant case, the Originating Summons was raised for the determination of questions generated from issues of the political party primary election under Section 87 of the Electoral Act 2010. Section 87(9) of the Act expressly specified that:
Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT, for redress.
The Federal High Court is a creation of Section 249 of the 1999 Constitution (as amended) and the Federal High Court Act. Section 19 of the Federal High Court Act provides as follows:
19. (1) The Court shall have and exercise jurisdiction throughout the federation, and for that purpose the whole area of the Federation shall be divided by the Chief Judge into such number of Judicial Divisions or part thereof by such name as he may think fit.
(2) For the more convenient dispatch business, the Court may sit in any one or more Judge to sit in any or more of the Judicial Divisions.
(3) The Chief Judge shall determine the distribution of the business before the Court amongst the Judges thereof and may assign any judicial functions to any Judge or in respect of a particular cause or matter in a Judicial Division.
(4) Subject to direction of the Chief Judge, every Judge of the Court shall sit for the trial of civil and criminal causes or matters and for the disposal of other legal business the Chief Judge may think fit.
This provision in conjunction with Sections 6(5) and 251 of the Constitution makes it apposite and clear to state that the Federal High Court has territorial and cause of action jurisdiction to entertain this suit. When jurisdiction is conferred upon a Court by the Constitution and the statute, the Court must stick to the jurisdiction and ensure that the jurisdiction is deployed in line with the law. In the instant case, the Originating Processes was issued by the Federal High Court. In the case of Akeredolu v. Abraham & Ors., (2018) 10 NWLR (Pt. 1628), Galinje, JSC, held on the nature and scope of jurisdiction of the Federal High Court as follows:
‘By virtue of Section 19 of the Federal High Court Act and Order 6 Rule 31 of the Federal High Court (Civil Procedure) Rules 2009, the Federal High Court has jurisdiction throughout the Federation and service out of jurisdiction is defined as out of the Federal Republic of Nigeria. Owo in Ondo State is within Nigeria and therefore, within the jurisdiction of the Federal High Court sitting in Abuja”.
It is therefore certain and settled that the jurisdiction of the Federal High Court covers the whole of Nigeria territorially. It follows also that since the Divisions created for the Court are for mere administrative convenience, nothing in law stops the Court’s Division in Abuja entertaining this suit which has a cause of action that originated from Anambra State, Nigeria.
From the foregoing therefore, the trial Court had jurisdiction in this case. These issues therefore, are resolved against the appellant.
In this appeal, all the issues framed have been resolved against the appellant. This is indicative of the hollowness of this appeal.
The appeal is bereft of merit. The appeal is accordingly dismissed. The judgment of the trial Court in Suit No: FHC/ABJ/CS/648/2021, delivered on 20th December, 2021, is hereby affirmed.
Parties are to bear their respective costs.
DANLAMI ZAMA SENCHI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, STEPHEN JONAH ADAH, JCA just delivered and I agree with the findings and conclusion reached therein that this appeal lacks merit and it is hereby dismissed by me as well.
The Judgment of the Federal High Court in suit No. FHC/ABJ/CS/648/2021 delivered on 20th day of December, 2021 by I. E. Ekwo, J is hereby affirmed.
BATURE ISAH GAFAI, J.C.A.: I have before now read in draft the Judgment just delivered by my brother Adah, JCA.
I am in full agreement with the reasonings expressed therein and the conclusion reached thereby. I adopt those reasonings as mine; by which I too dismiss this Appeal as one that is completely lacking in merit.
Appearances:
M.A. Magaji, SAN, with him, Christian Kelechi Udeoyibo, Esq., and Vincent Ottaokpukpu, Esq. For Appellant(s)
Chief Chris Uche, SAN, and Chief Gordy Uche, SAN, with him, Olakunle Lawal, Esq., and Abduljalil Musa, Esq., – for 1st Respondent.
I.S. Mohammed, Esq. -for 2nd Respondent.
A.M. Aliyu, SAN, with him Okechukwu Edeze Esq., and A.E. Osayomon Esq. – for 3rd Respondent. For Respondent(s)
