DANTIYE & ANOR v. ADAMU & ORS
(2020)LCN/14682(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Friday, October 23, 2020
CA/KN/174/2020
RATIO
PROCESS: ESSENCE OF SERVICE OF PROCESS
Above all, the essence of service is for a defendant to be aware and be notified of the case he is to meet in Court, and to be given the opportunity to meet it. PER YAHAYA, J.C.A.
APPEAL: POWER OF THE APPELLATE COURT TO MAKE FINDINGS AS TO DOCUMENT
Although generally, the findings of facts are those of the trial Courts, where the evidence is documentary, an appellate Court is in equal footing with a trial Court to make the findings. PER YAHAYA, J.C.A.
ACTION: WHAT CONSTITUTE A CAUSE OF ACTION
A cause of action is the aggregate of facts which give rise to a right of action, facts upon which there is a plaintiff and a defendant and a right to sue. See OWIE VS. IGHIWI (2005) LPELR – 2846 (SC). A cause of action is not necessarily that which will enable success. It is only a cause to enforce a right which may or may not be proved. PER YAHAYA, J.C.A.
ORIGINATING SUMMONS: PURPOSE OF ORIGINATING SUMMONS
Originating Summons procedure is employed where what is required to be determined, is simple construction of documents or statutes or where the facts are not hostile and contentious between the parties D.S.S VS. AGBAKOBA (1999) 3 NWLR (PT. 595) 314. It is a procedure that saves time, energy and costs for the parties as well as the Courts. The issues are determined on the affidavits evidence filed. Where the facts are contentious, Originating Summons would not be the proper mode to employ, and pleadings would have to be ordered – UNIVERSITY OF LAGOS VS. AIGORO (1991) 3 NWLR (PT. 179) 376 AND OSSAI VS. WAKWAH & ORS. (2006) 2 SCNJ 1. The issue of time is also an important factor. Where a suit has to be determined within a given period, on non-contentious facts, the trial Court is likely going to stick to the Originating Summons procedure. Where a suit is commenced by Originating Summons and the affidavit evidence discloses conflicting and contentious facts that cannot be resolved on the affidavit evidence, the trial Court is at liberty to order pleadings to be filed for a full trial. See DOHERTY VS. DOHERTY (1968) NMLR 241. It is the discretion of the trial Court, not a right of the applicant to have pleadings ordered. If it is refused, it cannot amount to a breach of fair hearing capable of setting aside the judgment of the trial Court. If a party is aggrieved by the refusal to order pleadings, he can appeal the decision and will succeed if he is able to show that the discretion of the trial Court had not been properly exercised which resulted in a miscarriage of justice. PER YAHAYA, J.C.A.
Before Our Lordships:
Abubakar Datti Yahaya Justice of the Court of Appeal
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Amina Audi Wambai Justice of the Court of Appeal
Between
1. NASIRU GARBA DANTIYE 2. PEOPLES DEMOCRATIC PARTY APPELANT(S)
And
- MUSA MUHAMMAD ADAMU 2. ALL PROGRESSIVES CONGRESS 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION RESPONDENT(S)
ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decisions (Rulings and Judgment) of the trial High Court Jigawa State delivered on 25th August 2020.
The 1st Appellant as the first defendant at the trial Court, was sponsored by the second Appellant (defendant) to contest a bye election into the office of a member representing Babura/Garki, Federal Constituency in the National Assembly, held on the 14th March 2020. The 1st and 2nd Respondents herein, as the Plaintiffs in the trial Court, took out of the trial Court, an Originating Summons pursuant to Section 31(5) of the Electoral Act 2020 as amended, raising two questions –
1. Whether the name Nasiru Garba Dantiye as contained in Exhibits J and K, is the same as Nasiru Garba Jigawa that appears in exhibits A, B, C, E, F, G and H and Nasiru Garba as contained in Exhibits D and I?
2. Whether having regard to the facts deposed to by the 1st Defendant in his Affidavit in Support of Personal Particulars (Form EC9) and the documents attached to the said form EC9, the 1st Defendant has given false information in view of Section 31(5) of the Electoral Act 2010 (as amended)?
1
The 1st and 2nd Appellants prayed for the following reliefs –
A. A DECLARATION OF THIS HONOURABLE COURT that NASIRU GARBA DANTIYE is different from NASIRU GARBA JIGAWA and NASIRU GARBA.
B. A DECLARATION OF THIS HONOURABLE COURT that the 1st Defendant has presented the educational qualifications of NASIRU GARBA JIGAWA and NASIRU GARBA as his documents.
C. A DECLARATION OF THIS HONOURABLE COURT that the 1st Defendant has given false information to the 3rd Defendant by presenting the documents of NASIRU GARBA JIGAWA and NASIRU GARBA.
D. A DECLARATION OF THIS HONOURABLE COURT that the nomination of the 1st Defendant as the Candidate of the 2nd Defendant in the forth coming bye-election into the office of Member House of Representatives Babura/Garki Federal Constituency of Jigawa State is bound to be set aside as the 1st Defendant presented false information to the Independent National Electoral Commission in Form EC9.
E. A DECLARATION OF THIS HONOURABLE COURT that the information presented by the 1st Defendant to the 3rd Defendant as it relates to his name is false.
F. AN ORDER OF THIS
2
HONOURABLE COURT setting aside the nomination of the 1st Defendant as the Candidate of the 2nd Defendant in the forth coming bye-election into the office of Member House of Representative Babura/Garki Federal Constituency of Jigawa State for presenting false information to the National Electoral Commission (INEC).
G. AN ORDER OF PERPETUAL INJUNCTION restraining the 2nd Defendant, its officers and agents from treating, presenting or holding out the 1st Defendant to the National Electoral Commission (INEC) as the PDP’s candidate for the forth coming by election into the office of member representing Babura/Garki Federal Constituency.
H. AN ORDER OF PERPETUAL INJUNCTION restraining the 3rd Defendant, its officers and agents from accepting, publishing or further publishing the 1st Defendant as the 2nd Defendant’s candidate for the forth coming by-election into the office of member representing Babura/Garki Federal Constituency.
I. AND for such further or other ORDERS as this Honourable Court may deem fit to make in order to give effect to the reliefs sought herein.
The 1st and 2nd Respondents as the Plaintiffs, filed an Ex-parte
3
Motion praying the trial Court to order service out of jurisdiction and substituted service on the 2nd and 3rd Respondents at Abuja. The Motion was granted on the 12th May, 2020. As he was opposed to the Originating Summons, the 1st Appellant only, filed a counter-affidavit and a preliminary Objection on the 15th June 2020. The 2nd Appellant did not file a counter-affidavit opposing the Originating Summons but filed two Motions on 20th July 2020 challenging the service of the Originating Summons on it and the competence of the Originating Summons and prayed the trial Court to set aside the order made on 12th May 2020 and to strike out the Originating Summons as it was filed without leave of the trial Court to issue it. The second Motion prayed the Court to strike out the Originating Summons or in the alternative, order pleadings. The 3rd defendant (3rd respondent INEC), filed a counter-affidavit opposing the Originating Summons. The applications were accompanied by addresses. The parties then filed further processes in the form of further and better affidavits, reply affidavits and replies on the points of law. The various applications filed were heard
4
together with the Originating Summons and the Preliminary Objection.
On the 25th August 2020, the trial Court dismissed all the applications filed and the preliminary objection. It however granted all the reliefs sought for in the Originating Summons. Dissatisfied, the defendants/Appellants, appealed to this Court, by their Notice of Appeal filed on the 7th September 2020. The Plaintiffs who had their prayers in the Originating Summons granted, still filed a Cross-Appeal as Cross Appellants in respect of part of the judgment, via their Notice of Appeal filed also on 7th September 2020.
MAIN APPEAL
Mr. Abdul Mohammed settled the brief of the Appellants which was filed on 6th October 2020. He identified the following five issues –
1. Whether the learned trial Court Judge was right to have found that the Appellants were duly served with a competent Originating Summons in view of the facts and circumstances of this case? (Distilled from Ground 3).
2. Whether the learned trial Judge was right when he found that the 1st and 2nd Respondents have proved their claim for declaratory relief owing to non-denial of the depositions in
5
paragraph 9 of the Affidavit in support of the Originating Summons (Distilled from Ground 5 of the Notice of Appeal).
3. Whether the learned trial Court Judge breached the right to fair hearing of the 2nd Appellant by discountenancing the 2nd Appellant’s Motion on Notice challenging the mode of the initiation of an action and thereby simply because the 2nd Appellant had not filed a counter affidavit to the Originating Summons (Distilled from Ground 1).
4. Whether the learned trial Court Judge did not breach the right to fair hearing of the 2nd Appellant and the 3rd Respondent when his lordship discountenanced their defence to the case before him? (Distilled from Ground 4).
5. The learned trial Court Judge erred in law when his lordship found that the 1st and 2nd Respondents’ case disclosed a reasonable cause of action? (Ground 2).
He also filed a Reply brief on 13th October 2020 which I have considered.
The 1st and 2nd Respondents’ brief was settled by Abdulrahman M. Abdullahi and filed on 10th October 2020. The issues he identified are as those identified by the Appellants. I shall utilise the issues raised by the
6
Appellants. The 3rd Respondent did not file a brief.
ISSUE 1
Whether the learned trial Judge was right to have found that the Appellants were duly served with a competent Originating Summons in view of the facts and circumstances of this case?
Learned counsel for the Appellant submitted that service of processes is governed by Sheriffs and Civil Processes Act and that Section 96 thereof provides for both leave to issue and the manner in which the processes are to be served and that it is a judicial discretion that must be exercised before an originating process can be issued from one state to another. He referred to OBARO VS. HASSAN (2013) LPELR – SC 98/2004; M. V. ARABELLA VS. N.A. I.C (2008) NWLR (PT. 1097) 182 AND MUHAMMED VS. AJINGI (2013) LPELR – CA/K/5/2006 AT PAGES 25 – 26 on the need to observe the Rules of Court and the Sheriffs and Civil Processes Act. Counsel argued that it is a misconception to contend that because Rules of Court are silent on the procedure for obtaining leave under Section 96 of the Sheriffs and Civil Processes Act, then the provision is not applicable in the state. He contended therefore, that
7
leave of Court must be sought and obtained before Originating Summons can be issued as in this appeal. He then referred to the cases of TOUTON S.A. VS. GRIMAZDI COMPAGNIA DI NAVIGA ZIONI S.P.A & ORS. (2010) LPELR – CA/I/275/07 AND IZEZE VS. INEC (2018) LPELR – 4428 (SC) on the effect of issuing an Originating Summons without first obtaining leave. Counsel argued that the trial Court was wrong to hold that as there is no provision for obtaining leave in the Jigawa State High Court Civil Procedure Rules, there was no need to seek leave before the Originating Summons could be issued for service outside jurisdiction. He faulted the trial Court for not observing Order 5 Rules 1(2) and 2(1) of the Jigawa State High Court Civil Procedure Rules 2008 to hold the failure to file the Reply on Points of Law within time, as an irregularity and to have discountenanced it.
Counsel also argued that the 2nd Appellant could only be served at its headquarters, relying on the unreported Judgment of SENATOR AYO ADESEUN VS. PDP & ORS. IN CA/IB/133/2019. He failed to make this Judgment and the relevant Rules of Court upon which it was decided, available to
8
this Court. He submitted that the 2nd Appellant does not have any position as State Zonal Coordinator and so could not have been properly served with the processes on behalf of the 2nd Appellant. He invited us to take judicial notice of the fact that the 2nd Appellant does not have a State Zonal Coordinator by virtue of Sections 222, 223 and 224 of the 1999 Constitution, Section 122 of the Evidence Act 2011 and PDP VS. ATIKU ABUBAKAR (2007) 3 NWLR (PT. 1022) 515.
Learned counsel also referred to page 436 of the record on the finding of the trial Court, on the status of the application and submitted that this was taken suo motu without affording the parties the opportunity to respond. He urged us to discountenance the said findings and resolve the issue in favour of the Appellants.
In a response, learned counsel for the Respondents submitted that it was only the 2nd Appellant as the 2nd defendant that challenged service on it. He argued that it was served twice-through the 1st Appellant and through its officer at its secretariat at Dutse. He pointed out that the 2nd Appellant had not challenged the service on it at Dutse and that subsists. On service
9
through the Appellant, counsel submitted that the Jigawa State High Court (Civil Procedure) Rules 2008 were complied with and the Sheriffs and Civil Process Act which does not provide for mode of service or how it can be effected, had not been breached. He distinguished the cases of MOHAMMED MARI-KIDA VS. OGUNMOLA (2006) LPELR 1690 (SC) FROM M.V. ARABELLA VS. N.A.I.C (2008) ALL FWLR (443) 1208, cited by the Appellants as not applicable.
Counsel argued that the essence of service is to convey to the relevant party, notice of the pending case – AKEREDOLU VS. ABRAHAM (2018) LPELR – 44067 AT 59 -60, which had been done in this case. But that even if the service was irregular or improper, the 2nd Appellant having taken steps in the case by filing applications challenging the Suit, had waived its right to complain.
Learned counsel also submitted that leave to issue originating processes is not governed by Sections 96, 97, 98 and 99 of the Sheriffs and Civil Process Act at all. That the requirement to issue and serve originating processes outside jurisdiction, is governed by Rules of Court of the particular jurisdiction, not by Sheriffs and
10
Civil Processes Act and that in this case, Jigawa State High Court (Civil Procedure) Rules 2008, do not make provision for leave to issue and serve originating processes outside jurisdiction. The Originating process was thus validly issued. He concluded by arguing that all the authorities cited by the Appellants do not apply and he then urged us to resolve the issue in favour of the Respondents.
It is clear that there are two main points raised by the Appellants in this issue – leave to issue the Originating Summons and its service on the 2nd Appellant.
On leave to issue it, we are in complete agreement with learned counsel for the Respondents, that Section 96 of the Sheriffs and Civil Processes Act is not on leave to issue an originating process. It states –
96(1) “A writ of summons issued out of
Or requiring the defendant to appear at any Court of a State or the Capital Territory, may be served on the defendant in any other State or the Capital Territory.
(2) Such service may, subject to any rules of Court which may be made under this Act, be effected in the same manner as if the writ was served on the defendant in
11
the State or the Capital Territory in which the writ was issued.”
Clearly therefore, the provisions are on service, not leave to issue it. All the arguments of learned counsel for the Appellants on that aspect therefore go to naught. The case of OBARO VS. HASSAN (SUPRA) relied upon by the Appellants, is not applicable to the instant appeal because that case was decided when the Rules made provision for leave to issue the Writ of Summons. Here, as the learned trial Judge rightly stated, at page 443 of the record
“I have carefully combed the entire provisions of the Jigawa State High Court (Civil Procedure) Rules 2008 and am unable to find where it provided for service of writs outside the jurisdiction of this Court to be by leave first sought and obtained.”
Since there is no provision for leave to issue an originating process in the Sheriffs and Civil process Act, such provision can only be found in the relevant Civil Procedure Rules of a State or the Federal High Court. There is no such provision in the Jigawa State High Court (Civil Procedure) Rules. Therefore the issue of the Originating Summons in the instant appeal by the
12
trial Court, cannot be faulted as it is not contrary to any Rules applicable in the State, or the Sheriffs and Civil Process Act. All the authorities cited by learned counsel for the Appellants, do not support him as they are either not on leave to issue the process, or have been decided specifically, on failure to observe the various Rules of Court requiring leave to issue the processes, in the various jurisdiction. That is not the position here. We hold that the Originating Summons in the instant appeal has been validly and properly issued.
On service of the originating processes, learned counsel for the Appellants has attacked the finding of the trial Court that the 2nd defendant (2nd Appellant) had no application before the Court and that the 1st defendant appeared to have abandoned the application it filed, as a finding that was made suo motu without calling on parties to address on it, which should be discountenanced by this Court. This cannot be. The finding is based on the observation of the processes filed before the Court, to which the parties were all privy to. It was not a finding suo motu at all. It is clear that the application which is at
13
page 239 of the record shows on its face, that the Court shall be moved
“as counsel for the 1st Defendant/Applicant may be heard praying for the following reliefs……”
Thus showing that it was the 1st defendant that brought the application. It was also signed by Abdul Mohammed, the 1st Defendant counsel (page 241 of the record). But the affidavit in support of the application was sworn to by Nanchang Adam, on the “consent and permission of the 2nd Defendant to depose to this affidavit.” It simply means that the application brought by the 1st defendant, was not supported by an affidavit with the consent and permission of the 1st defendant. It means that the application was not supported by a valid affidavit and it is therefore incompetent. On the other hand, the affidavit sworn to on behalf of the 2nd defendant, has no application by the 2nd defendant. These are obvious facts before the trial Court, upon which it made the observation. There is absolutely nothing wrong in that. At any rate, despite the incompetent nature of the application filed by the 2nd defendant, the trial Court still considered it on its merit
14
– page 436 of the record. The whole submissions therefore by the counsel for the Appellants have no real value as they have not been prejudiced thereby, since the trial Court considered the application to have been filed by the 2nd defendant. It was a magnanimous gesture.
The said application, assumed to have been filed by the 2nd Appellant, challenged in prayer 2 thereof, the service of the Originating Summons served on it. The 1st Appellant did not challenge it despite the submission of Appellants at page 2 of the Reply brief. The 2nd Appellant was served with the Originating Summons at two different places – (1) through the 1st Appellant and (2) through its officer at its party secretariat at Dutse. It was the service effected on it through its officer the 1st Appellant in Kano that it challenged. It did not challenge the service effected on it, through one of its officers at its secretariat at Dutse. How were the Plaintiffs to know that the officer was not an official of the party? Since this is so, even if the service on it through the 1st Appellant is improper and is set aside, the service through one of its officers in its secretariat
15
at Dutse, was not contested and was therefore sufficient, especially as it is supported by proof of service. In such a situation, the complaint on service through the 1st Appellant is merely academic and it cannot be heard to complain about service that would lead to setting aside the service in two different places! This is clearly seen by the counter-affidavit filed by the Respondents here, and Respondents to the application to set aside the service – page 312 of the record. It shows that the 2nd Respondent was served with the Originating Summons and the Order of Court made on 12th May 2020, at its State Secretariat Dutse, and one Aminu Nuhu Jahun received it. A copy of proof of service was exhibited proving the positive assertion of service on the 2nd Appellant. The 2nd Appellant did not file a Reply affidavit to deny this. It is deemed to have admitted same. See AYOOLA VS. BARUWA (1999) 11 NWLR (PT. 628) 595 AND BADEJO VS. FEDERAL MIN. OF EDUCATION (1996) 8 NWLR (PT.464) 15. The trial Court was therefore at liberty, to accept as true, the contents of the counter-affidavit sworn to by the Respondents, especially as they have not been shown to be
16
incredible. The 2nd Appellant therefore did not at all challenge the service on its officer at the secretariat, at that time. It went further to take several and important steps after such service, by filing the application to challenge the competence of the Originating Summons and filing a counter-affidavit to the plaintiffs’ further and better affidavit and a written address, in respect of the competence of the Originating Summons. All these important fresh steps amount to a waiver of its rights to challenge the service. It is too late in the day to complain. See CLARA OME – EBO & ANR. VS. EGBUNIKE & ANR. (2019) LPELR -47166 (CA) AT 27 – 29. The argument in the reply brief on this is inapplicable as the motion to set aside service was the service through 1st Appellant. It did not challenge the second service through its officer, Jahun.
Learned counsel for the Appellants has also asked us to hold that the trial Judge should have taken judicial notice of the fact that Peoples Democratic Party Constitution does not have any position of a State Zonal Coordinator. He placed reliance on Sections 222, 223 and 224 of the 1999
17
and Sections 122 of the Evidence Act 2011. These are unhelpful as none of the Sections stipulates that Peoples Democratic Party or any party for that matter, should not have a State Zonal Coordinator. It was for the Appellants to establish before the trial Court, and not a matter in which it would take judicial notice of. The Appellants have not successfully challenged the service effected on the 2nd Appellant.
Learned counsel for the Appellants has challenged the trial Judge for discountenancing the Reply on Points of Law, filed by the 2nd Appellant, twelve days after it was served. The learned counsel’s reliance on Order 5 Rules 1(2) and 2(1) of the Jigawa State High Court (Civil Procedure) Rules, does not help him at all. There is no compulsion; i.e it is not mandatory for the Court to regard the failure to comply with the requirements as to time, place, manner or form as an irregularity. The word is “may”, thus connoting permission, a discretion on the part of the Judge. It is not a “shall.” If the discretion is exercised, an appellate Court cannot interfere, merely because it would have acted otherwise. It
18
has to be shown that the exercise of discretion was arbitrary or has occasioned miscarriage of justice before it can be interfered with. None has been established here. The suit was a pre-election matter which is time-bound. The trial Judge was entitled to take a dim view of failure to comply with the requirement as to time, and proceed appropriately. He could not be faulted in that regard.
Above all, the essence of service is for a defendant to be aware and be notified of the case he is to meet in Court, and to be given the opportunity to meet it. The Appellants were served with the Originating Processes. They were given the opportunity to meet the case, and they did. There is no injustice whatever. This issue is resolved in favour of the Respondents and against the Appellants.
ISSUES 2 AND 5 TOGETHER
2. Whether the learned trial Judge was right when he found that the 1st and 2nd Respondents have proved their claim for declaratory relief owing to non-denial of the depositions in paragraph 9 of the Affidavit in support of the Originating Summons (Distilled from Ground 5 of the Notice of Appeal).
5. The learned trial Court Judge erred in law
19
when his lordship found that the 1st and 2nd Respondents’ case disclosed a reasonable cause of action? (Ground 2).
On issue 2, learned counsel for the Appellants argued that the trial Court relied on the failure of the Appellants to deny the allegation of the Respondents, to grant the declaratory reliefs sought. He referred to pages 492 and 496 of the record on such reliance by the trial Court and submitted that it was in error as can be seen in the cases of AWAMARIDI & ANR. VS. INEC & ORS. (2019) LPELR – 49397 (CA) AND MAIHAJA VS. GAIDAM (2018) 1 NWLR (PT. 1610) 454 AT 502. Counsel also submitted that the documents attached to the affidavit in support of the Originating Summons are public documents which had not been certified and so inadmissible. Page 7 of the record. That it was wrong for the trial Court to rely upon inadmissible evidence to determine the questions in the Originating Summons –EMEKA VS. CHUBA – IKPEAZU & ORS. (2017) LPELR – 41920 (SC) AND NWAOGU VS. ATUMA (NO.3) 2013 4-5 SC (PT. 1) 130 AT 154. He urged that in such a case, the Judgment should be set aside – NZEKWU VS. NZEKWU (1989) 3 SC
20
(PT. 11) 76 AND S.P.D.C. (NIG.) LTD. VS. NWOLU 1991 3 NWLR (PT. 180) 496 AT 504.
Learned counsel also submitted that contrary to the finding of the trial Court, the Appellants had infact denied the deposition in the affidavit in support of the Originating Summons. He referred to paragraphs 6 and 11 at page 91 of the record. He found the findings of the trial Court perverse. He explained that the 1st Appellant simply changed his name and had advertised so in a National Newspaper, an activity he was entitled to – A. D. VS. FAYOSE & 4 ORS. (2005) 10 NWLR (PT. 932) 151 AT 192-193. He urged us to resolve the issue in favour of the Appellants.
The arguments of counsel on issue No. 5 are also on the issue of the inadmissible evidence relied upon by the trial Court to determine the Originating Summons. That the absence of such inadmissible evidence has resulted in a lack of reasonable cause of action.
Learned counsel for the Respondents replied and submitted that this appeal is on all fours with PDP & 2 ORS. VS. BIOBARAKUMA DEGI-EREMIENYO (2020) LPELR – 49734 (SC). Where the Supreme Court held that the Respondents did not dispute the
21
documents and the facts were not in conflict. He argued that here, the trial Court found that the 1st Appellant’s change of name is in respect of only one name – NASIRU GARBA JIGAWA, and did not cover the other names; and therefore, the documents bearing the names NASIRU GARBA AND NASIR GARBA, do not belong to him, especially as he did not state these names in Form EC9 as his former names. He argued that as there is no issue about variation in spelling of the names, the case of ATIKU ABUBAKAR & ANR. VS. INEC (2020) 12 NWLR (PT. 1737), does not apply.
On certifying the documents attached to the Affidavit in Support of the Originating Summons, counsel referred to pages 139 – 156, 219 – 235 and 413 – 415 of the record as showing certified true copies of the documents including form EC9.
On issue 5, learned counsel submitted that the absence of “admissible evidence” by a party cannot be material in striking out an action for not disclosing a cause of action, since it is not evidence that would be looked at, in determining the application –IBRAHIM VS. OSIM (1988) NWLR (PT. 82) 257 AT 275.
I agree
22
with learned counsel for the Appellants in the Reply brief, that there is a proper challenge to ground 5 of the appeal, against the finding of the trial Judge that Exhibit. Dantiye 1 is hearsay evidence (page 494 of the record). However, by the authority of CHUKA VS. IKECHUKWU & ORS. (2015) LPELR – 40443 (CA) AT PAGE 37 per Agim JCA, it was held, relying on OYELESE & ORS. VS. INEC LPELR – 4097 (CA) AND AGBAI & ANR. VS. INEC & ORS. (2008) LPELR – 3647 (CA) that Newspaper reports being statements reported in them as having been made by certain persons, amount to hearsay and inadmissible – Sections 37 and 38 of the Evidence Act 2011. That being the case, the trial Court was right that Exhibit Dantiye 1(Triumph Newspaper report of 1st April, 2003) is hearsay and inadmissible.
However, even if Exhibit Dantiye 1 can be considered, it is the change of name only from NASIRU GARBA JIGAWA to NASIRU GARBA DANTIYE. It does not contain the two names of NASIRU GARBA AND NASIR GARBA which are conspicuously missing in the particulars submitted by the 1st Appellant to INEC (3rd Respondent) as former names, but are amongst the names
23
contained in the documents submitted by the 1st Appellant, purporting to be his names. The findings of the trial Judge is thus supported by law. The submission of the names contained in the documents the 1st Appellant submitted to INEC, which are not part of his change of name, therefore clearly amounted to presenting false information in his Form EC9, to INEC.
The fact that the trial Judge had said that the 1st Appellant was guilty of presenting false information, does not mean that he had been tried and found guilty in the sense of trying a criminal offence. No. It simply means that, he had been found liable for presenting false information as stipulated in Section 31(5) of the Electoral Act 2010 (as amended). Once the information supplied is false, the Section is activated. There is no question of a charge being preferred against the 1st Appellant and a plea taken, as counsel for the Appellants had argued.
On certified true copies, there is no doubt that the relevant documents at pages 8 – 34 of the record, which accompanied the Originating Summons, have not been shown on their faces, to have been certified as true copies. This is
24
buttressed by paragraph 11 of the Affidavit in Support of the Originating Summons – page 7 of the record, where it was deposed that as of that date, certified copies of the documents had not been issued to the Respondents, though they applied for same. However later on, when the Respondents as Plaintiffs were arguing their Originating Summons, pages 410 – 413 of the record, they relied on documents that were certified as true copies. See pages 139 – 156 which are the relevant documents that are certified as true copies. See also the documents at pages 219 – 235 attached to the Plaintiffs’ Additional Further and Better Affidavit. Clearly, these were the documents that were considered in determining the Originating Summons and other applications by the trial Court. Since they have been certified as true copies, the issue of them being inadmissible and the Court relying on inadmissible evidence to determine the suit, does not arise. The argument of learned counsel for the Appellants on it, are therefore unsupportable.
I have also considered the processes filed, especially the Affidavits, counter-affidavits, Further and Better
25
Affidavits of the parties and the documents exhibited thereto. I agree with the learned trial Judge, when he found that the change of name of the 1st Appellant, is in respect of only one name – NASIRU GARBA JIGAWA. See page 220 of the record, which is the Affidavit in support of the particulars of persons seeking Election, under the column
“former name(s)….”
He stated only, “NASIRU GARGA JIGAWA”. He did not state that his former names include NASIRU GARBA AND NASIR GARBA, which are part of the names the Plaintiffs had enumerated as false, and not belonging to the 1st defendant. He should have done that to show the change of name includes these two. The 1st Appellant also did not deny presenting the documents containing the names and has not included these names in the change of name he earlier made. Although generally, the findings of facts are those of the trial Courts, where the evidence is documentary, an appellate Court is in equal footing with a trial Court to make the findings. I have no reason to depart from the findings of the trial Court in this regard. This leads me to the issue of admission.
I find
26
the case of PDP & 2 ORS VS. BIOBARAKUMA DEGI-EREMIENYO (SUPRA) apt in this appeal. Therein, the Supreme Court, on the plaintiffs asking the trial Court in their Originating Summons to interpret the documents regarding various names of the 1st Respondent as not belonging to him, held that
“…The respondents as defendants particularly the 2nd and 3rd respondents, did not dispute those documents. They infact admitted that the documents belong to the 1st Respondent and that he owned those multiple names appearing variously on the said documents. The facts, not being in hostile conflict, are the basis for the proceedings in the Originating Summons.”
This is what happened in this appeal. The Plaintiffs averred that the various names did not belong to the 1st Respondent as he had falsely submitted. He has not denied submitting the names to the 3rd Respondent and has stated that they are all his names. So there is no hostile conflict on the facts. Since he has not connected himself to the two vexed names (NASIRU GARBA and NASIR GARBA) in his Form at page 220, he had presented false information in his Form EC9. This has nothing to do with
27
a spelling error in the names as was applicable in the case of ATIKU ABUBAKAR & ANR. VS. INEC (SUPRA) and so not applicable. So the trial Judge did not merely rely on admission or the weakness of the Appellants’ case, to grant the declaratory reliefs as contended by learned counsel for the Appellant. There was palpable documentary evidence upon which he relied upon.
The basis of the attack of the finding of the trial Judge that there was reasonable cause of action, is the lack of admissible evidence upon which it was based. I have already held that there was infact admissible evidence since the trial Court infact relied on public documents that were duly certified. To that extent, there was reasonable cause of action. However, as pointed out by learned counsel for the Respondents, determining a reasonable cause of action of a suit, is not dependent on evidence. A cause of action is the aggregate of facts which give rise to a right of action, facts upon which there is a plaintiff and a defendant and a right to sue. See OWIE VS. IGHIWI (2005) LPELR – 2846 (SC). A cause of action is not necessarily that which will enable success. It is only a
28
cause to enforce a right which may or may not be proved. It therefore has nothing to do with certifying or not certifying documents in this instant appeal. Issue 2 and 5 are therefore both resolved in favour of the Respondents and against the Appellants.
ISSUES 3 AND 4 TOGETHER
3. Whether the learned trial Court Judge breached the right to fair hearing of the 2nd Appellant by discountenancing the 2nd Appellant’s Motion on Notice challenging the mode of the initiation of an action and thereby simply because the 2nd Appellant had not filed a counter affidavit to the Originating Summons (Distilled from Ground 1).
4. Whether the learned trial Court Judge did not breach the right to fair hearing of the 2nd Appellant and the 3rd Respondent when his lordship discountenanced their defence to the case before him? (Distilled from Ground 4).
Learned counsel for the Appellants submitted that the trial Court failed to hear the application challenging the mode of commencing the suit, i.e by Originating Summons, because a counter-affidavit to the Originating Summons, had not been filed. He submitted that the counter-affidavit had infact been filed
29
as can be seen from the finding of the trial Judge at page 169. I must point out right away, that the extract of page 169 of the record quoted by learned counsel for the Appellants, does not at all show that the 2nd defendant had filed “a defence to the substantive suit”. The extract shows that what the 2nd defendant filed, was a counter-affidavit to the plaintiffs’ “further and better affidavit dated and filed on the 9th July 2020” and also an additional counter-affidavit to the plaintiffs’ further and better affidavit. Clearly therefore, the 2nd defendant did not file a counter-affidavit to the affidavit in support of the Originating Summons and that is what the trial Court correctly found. Learned counsel for the Appellants submitted that the failure of the trial Court to consider the application praying for pleadings to be ordered “in view of the violent nature of the deposition” amounted to a breach of fair hearing, the effect of which is to set aside the decision – NWABUEZE VS. PEOPLE OF LAGOS STATE (2018) LPELR – 44113 (SC) AND F.R.N VS. AKUBUEZE (2010) LPELR – 1272 (SC). He urged us to
30
resolve same in favour of the Appellant.
On issue number 4, learned counsel for the Appellants argued that the trial Court breached the right to fair hearing of the 2nd Appellant when it discountenanced his defence to the case. He referred to page 486 of the record to submit that the Judge “discountenanced all the affidavits filed by all the Appellants and the 1st and 2nd Respondents which are processes aimed at…”. Similarly, he referred to page 485 of the record to submit that the trial Judge found that the additional affidavits were “filed introducing new depositions as in exhibits C and Exhibit D!”
In a reply, learned counsel for the Respondents submitted that the application was not discountenanced but was determined on its merit. He referred to page 456 of the record.
As stated earlier, there was no counter-affidavit filed by the 2nd defendant, in opposition to the affidavit in support of the Originating Summons. The counter-affidavit filed by 2nd defendant, was in opposition to further and better affidavit in support.
Originating Summons procedure is employed where what is required to be determined, is
31
simple construction of documents or statutes or where the facts are not hostile and contentious between the parties D.S.S VS. AGBAKOBA (1999) 3 NWLR (PT. 595) 314. It is a procedure that saves time, energy and costs for the parties as well as the Courts. The issues are determined on the affidavits evidence filed. Where the facts are contentious, Originating Summons would not be the proper mode to employ, and pleadings would have to be ordered – UNIVERSITY OF LAGOS VS. AIGORO (1991) 3 NWLR (PT. 179) 376 AND OSSAI VS. WAKWAH & ORS. (2006) 2 SCNJ 1. The issue of time is also an important factor. Where a suit has to be determined within a given period, on non-contentious facts, the trial Court is likely going to stick to the Originating Summons procedure. Where a suit is commenced by Originating Summons and the affidavit evidence discloses conflicting and contentious facts that cannot be resolved on the affidavit evidence, the trial Court is at liberty to order pleadings to be filed for a full trial. See DOHERTY VS. DOHERTY (1968) NMLR 241. It is the discretion of the trial Court, not a right of the applicant to have pleadings ordered. If it is refused,
32
it cannot amount to a breach of fair hearing capable of setting aside the judgment of the trial Court. If a party is aggrieved by the refusal to order pleadings, he can appeal the decision and will succeed if he is able to show that the discretion of the trial Court had not been properly exercised which resulted in a miscarriage of justice.
In the instant appeal, the suit was commenced by Originating Summons. It is a pre-election matter which is time bound. By the time the case came up for hearing, a lot of time had elapsed and there was need to hear and determine it, timeously. The trial Judge in fact, considered the merit or otherwise of commencing the suit by Originating Summons, which anyway, was the subject of the application by the 2nd defendant. At page 456 of the record, the trial Judge showed that he considered the appropriateness of the Originating Summons seeking declaration that the certificates presented by the 1st defendant in form EC9, to INEC is false, and found that the suit
“is not one that requires filing of pleadings, neither is it contentious….”
He was right, as all that was required, was to look at the
33
documents submitted to INEC (3rd Respondent) by the 1st defendant vis-avis the affidavits and exhibits, and determine the questions paused. The facts are not hostile and there was therefore no need to order pleadings which may have seriously affected the hearing and determination of the pre-election suit, within time.
When learned counsel for the Appellants referred to page 486 of the record and submitted that the trial Judge had “discountenanced all the affidavits filed by all the Appellants and the 1st and 2nd Respondents which are processes aimed at….”, he was making a misstatement of the record, for the trial Judge at page 486 of the record, never stated that he discountenanced all the affidavits filed by all the Appellants and the 1st and 2nd Respondents”. There is nothing like that at page 486 of the record. It is at page 487 of the record that the trial Judge discountenanced “all the further and better affidavits of the plaintiffs (not all their affidavits) and the defendants’ responses to same, as well as any additional further and better affidavit”. He did this because he could “not find the
34
purpose for which it was intended”. After all, if he discountenanced the further and better affidavits of the plaintiffs, then the responses to them by the defendants, could no longer be useful since what they were responding to, no longer existed.
Again, at page 485 of the record, the trial Judge never stated that he found “that the additional affidavits were filed “introducing new depositions as to exhibits C and Exhibit D,” as counsel for the Appellants had submitted. He took things out of context. What the Judge found is that he could not find the purpose for which the further and better affidavit was intended for. That introducing new deposition as in Exhibits C and Exhibit D, did not correct any thing missing in the affidavit in support of the Originating Summons. In other words, they were superfluous, and added no value to the Originating Summons. The submissions of counsel in that vein, are not borne by the record and are therefore not relevant or material. At any rate, the Originating Summons was found correctly, to be the right mode of commencing the suit and it was determined on the merit. Issues 3 and 4 are therefore
35
resolved in favour of the Respondents and against the
Appellants. This appeal lacks merit and it is dismissed.
N50,000 costs to the Appellants.
THE CROSS APPEAL NO: CA/KN/EPT/NA/174/2020
This cross-appeal has arisen from the same decision as in the Main appeal, delivered on the 25th August 2020, by the trial High Court Ringim Jigawa State. The cross-appeal is against part of the Judgment of the trial Court.
The cross Appellants’ brief was settled by Abdulrahman Mukhtar Abdulahi and was filed on 6th October, 2020. He distilled three issues for determination viz-
1. Whether the learned trial Judge was right in discountenancing the Cross Appellants’ further and better affidavit and additional further and better affidavit regard being to the right of parties to actions determined on the basis of affidavit evidence to file further affidavits to counter averments made by the opposing parties in their respective affidavits and to tender documents that will assist in the just determination of the case? Distilled from Ground of Cross Appeal No. 1.
2. Whether the learned trial Judge was right when his Lordship failed to strike
36
out the 2nd Cross Respondent’s processes (not the processes challenging service and the competence of the originating summons), and considered same in determining the substantive originating summons? Distilled from Ground of Cross Appeal No. 3.
3. Whether the learned trial Judge was right when his Lordship failed to determine the Cross Appellants’ application to tender from the bar a certified true copy of the 1st Appellant/Cross Respondent’s form EC9? Distilled from Ground of Cross Appeal No. 2.
He also filed Cross Appellants’ Reply brief on 13th October 2020.
The Cross Respondents’ brief was settled by Mr. Abdul Mohammed and was filed on 10th October 2020. Therein, he raised a Preliminary Objection and argued it in the brief.
Learned counsel for the preliminary Objector to the cross-appeal, challenged the competence of the cross-appeal on two grounds-
(a) there is no competent relief before this Honourable Court; or
(b) this Court is estopped by Section 285(10) of the Constitution Fourth Alteration Act No. 21 of 2017 and the decision of the Supreme Court in SAKI VS. APC (2020) 1 NWLR (PT. 1706) SC
37
515 AT 540 from exercising its adjudicatory power in resolving the Cross Appeal.
He referred to the reliefs sought for in the Cross-Appeal and submitted that they are not competent as they are without any value to the cross-appellants. They are not meant to determine the rights of the parties in the appeal, are incompetent and this Court lacks the jurisdiction to determine same.
He referred to JOSEPH AGBAJE VS. INEC & ORS. (2015) LPELR-25651 (CA) AT PAGES 58 – 59) AND CPC VS. INEC (2011) 18 NWLR (PT. 1279) 493.
On this point, learned counsel for the Cross-Appellants in the Reply brief, distinguished the case of SAKI VS. APC (SUPRA) relied upon by the Cross-Respondents as inapplicable in that it was on statute-bar and the conditions Court of Appeal would require to be satisfied, before it can invoke Section 15 of the Court of Appeal Act.
On the reliefs sought, counsel submitted that the case cited by the Cross-Respondents’ counsel are on defective reliefs or absence of a relief in an Election Petition where the absence or defect, renders the reliefs ungrantable. He submitted that an appeal or a cross appeal cannot be
38
dismissed or struck out simply because there is no relief inserted in the Notice of Appeal. He relied on KATTO VS. C.B.N. (1991) LPELR-1678.
May I say that the case of KATTO VS. CBN (SUPRA) relied upon by the counsel for the Cross Appellant, does not support him. In that case, what the Supreme Court held is that an appeal “which is valid, will not be dismissed or struck out merely because the relief sought is not inserted in the notice of appeal…”
The Preliminary Objector is not contending that reliefs have not been inserted in the Notice of Cross-Appeal. His grouse is that the reliefs so inserted are incompetent as they add no value to the cross appeal even if it succeeds. In the case of AGBAJE VS. INEC (SUPRA) it was held that
“Generally where the reliefs that are relevant and appropriate in the light of the facts contained in the pleading of a party are not asked for, so that even if the case is tried and plaintiff’s case proved, no remedy will enure to the benefits of the Plaintiff, leaving his position unchanged, the trial of such a case amounts to an idle and vain exercise. Such a case is clearly incompetent
39
for trial. If it proceeds to trial, it would be dismissed. In IGE VS. OLUNLOYO (1984) 1 SC 195, the Supreme Court dismissed an Election Petition because the Petition did not contain the prayer that the gubernatorial election held on the 13th August, 1983 be declared void…
Equally, the reliefs claimed must be compatible with the case made out by the facts in the pleadings…….”
This authority therefore shows that if reliefs are not asked for in a suit, it will be incompetent and will be dismissed, even if it proceeds to trial, by an appellate Court. It is also clear that not only must the reliefs be sought for, they must be relevant and appropriate. Although this is on the trial of a case, it should also apply in a Notice of Appeal or a Cross- Appeal, since an appellate Court can dismiss it, even at the Supreme Court, if the relevant reliefs were not asked for. This Authority of IGE VS. OLUNLOYO referred to, is directly on election matters as in the instant cross-appeal and has more relevance than the case of KATTO VS. CBN (SUPRA) relied upon by the cross-appellant, which is not on an election issue.CPC VS. INEC (2011) 18
40
NWLR (PT. 1279) 493 is a Supreme Court decision that also directly supports and strengthened AGBAJE VS. INEC (SUPRA).
In the instant cross-appeal, the reliefs sought for are
1. AN ORDER of this Honourable Court allowing the cross appeal.
2. AN ORDER of this Honourable Court striking out as incompetent all the processes filed by the 2nd Appellant/Cross Respondent other than the processes challenging service and the competence of the originating summons having been filed without basis and out of the stipulated time for responding to issues and facts raised in an originating summons.
3. AN ORDER of this Honourable Court admitting in evidence the certified true copy of the 1st Cross Respondent’s form EC9 tendered by the Cross Appellants from the bar.
4. AN ORDER of this Honourable Court setting aside the decision of the trial Court discountenancing the Cross Appellants’ further and better affidavit and the additional further and better affidavit.
5. AND FOR SUCH FURTHER ORDER(S) this Honourable Court may deem fit to make in circumstances of this cross appeal.
I agree with learned counsel for the
41
Cross-Respondents/Objector, that the discountenanced processes, even if countenanced by this Court if the cross appeal succeeds, would not be for the purpose of determining the rights of the parties in this cross appeal. None of the reliefs is of any value, as it would not change the fortune of the cross appellants. I therefore sustain the preliminary objection and I strike out the cross appeal.
In case we are wrong however, I have looked at the Issues raised by the Cross Appellants again. The determination of the issues would be moot, a mere academic exercise, irrelevant to the Cross-Appellants who have succeeded in the Main appeal. In ODEDO VS. INEC (2008) 17 NWLR (PT. 1117) 554 AT 600, Tobi JCA as he then was, held that
“…An academic issue or question does not relate to the live issues in the litigation because it is spent as it will not enure any right or benefit on the successful party.”
It is not the business of this Court to embark on an academic exercise. Only live issues are relevant for determination – See KUBOR VS. DICKSON (2012) LPELR – 9817 (SC) and ELIJAH VS. STATE (2019) 17 NWLR (PT.1702) 527. Having resolved
42
the Main Appeal in favour of the Cross-Appellants, there is no more live interest enuring to them to be considered. Consequently, I strike out the Cross Appeal.
Parties to bear their costs.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Abubakar Datti Yahaya, JCA. His Lordship has ably considered and resolved all the issues in contention in the appeal. I agree with the reasoning and abide the conclusions reached therein. I have nothing more to add.
AMINA AUDI WAMBAI, J.C.A.: I had a preview of the leading judgment of my learned brother ABUBAKAR DATTI YAHAYA, JCA. My learned brother has ably considered and resolved all the issues in the appeal and cross appeal. I agree with his reasoning and conclusion that there is no merit in both the appeal and the cross appeal. I also dismiss both and abide the order as to costs in the main appeal.
43
Appearances:
O. AMEDU For Appellant(s)
M. ABDULLAHI – for the 1st & 2nd Respondents/Cross-Appellants
BASHIR M. ABUBAKAR, with him, HASSAN AMINA and FATIMA DAHARA’U SHEHU – for the 3rd Respondent For Respondent(s)
