DR. VINCENT ELE ASOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2013)

DR. VINCENT ELE ASOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS

(2013)LCN/6172(CA)

In The Court of Appeal of Nigeria

On Thursday, the 9th day of May, 2013

CA/C/89/2011

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

DR. VINCENT ELE ASOR Appellant(s)

AND

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. ACTION CONGRESS OF NIGERIA
3. MR. PATRICK HYCINTH IWARA Respondent(s)

RATIO

INSTANCES WHERE NON-FILING A FURTHER AFFIDAVIT IS FATAL TO AN APPLICATION FOR MOTION FOR STAY OF EXECUTION PENDING APPEAL

In Ajomale v. Yaduat (No.2) (1991) 5 SCNJ 178 at 184 the Supreme Court gave an instance when the non-filing of a further affidavit was fatal to the applicant’s application for motion for stay of execution pending appeal to wit:
“I may pause here to observe that the defendant file no further affidavit to controvert the above deposition. It is, of course, trite law that when, in a situation such as this, facts are provable by affidavit and one of the parties deposed to certain facts, his adversary has a duty to swear to an affidavit to the contrary if he disputes the facts. Where, as in the instant case, such a party fails to swear to an affidavit to controvert such facts, these facts may be regarded as duly established. In the instant case, from the contents of the above paragraphs of the further affidavit sworn to by the second plaintiff and the portion of the judgment of the learned trial Judge quoted above, it appears that the land in dispute was vacant and undeveloped land at the time the proceedings commenced. The defendant cleared it and fenced it round, commenced a building, rushed it through, and packed into one of the duplex during the pendency of the proceedings in the Court of trial. I shall bear these facts in mind in my consideration of this appeal.” PER TUR, J.C.A.

THE NATURE OF ORIGINATING SUMMONS

The nature of originating summons has been very well pronounced in a number of legal authorities. The Supreme Court, per Onnoghen JSC in Dapianlong V. Dariye (2007) 8 MJSC 140, (2007) 4 S. C. (PT. III) 18 said that:
“The originating summons procedure is a means of commencement of action adopted in cases where the facts are not in dispute or there is no likelihood, of their being in dispute and when the sole or principal question in issue is or is likely to be one directed at the construction of a written law, Constitution or any instrument or of any deed, will, contract or other document or other question of law or in a circumstance where there is not likely to be any dispute as to the facts. In general terms, it is used for non-contentious actions or matters i.e. those actions where facts are not likely to be in dispute, in actions commenced by originating summons, pleadings are not required rather affidavit evidence are employed: see Director, State Security Service v. Agbakoba (1999) 3 NWLR (Pt. 595) 314: Din v. A-G of the Federation (1986) 1 NWLR (Pt. 17) 471: Keyamo v. House of Assembly Lagos State & Ors (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 of 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. (Order 38 rule 1 and Order 44 rule 1 L). 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 dealings 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. If there are serious disputes as to facts then a normal writ must be taken out and not originating summons; Doherty v. Doherty (1968) NMLR 241. In matters where facts are not in issue the originating summons, which must be supported by an affidavit of the facts must be taken out and will become operative once a Judge in chambers has signed it thus giving direction for its service.” PER OTISI, J.C.A.

JOSEPH TINE TUR, J.C.A (Delivering the Leading Judgment): The appellant and the 3rd respondent are registered members of the Action Congress of Nigeria (2nd respondent).
The 2nd respondent was to conduct primaries on the 11th and 12th January, 2011 to elect a candidate to represent her at the elections to be held in April, 2011 for the House of Representatives and the Senate respectively. Appellant’s case is that he obtained forms from the 2nd respondent to contest the Cross River State Central Senatorial District having paid the requisite fee of N600, 000.00. At the primaries held on 11th and 12th January, 2011 he emerged the winner but the 2nd respondent forwarded the name of the 3rd respondent who never participated at the primaries to the 1st respondent namely, the Independent National Electoral Commission. Being aggrieved the appellant instituted an Originating Summons in the Federal High Court, Calabar, Cross River State on 3rd day of February, 2011 supported by affidavit and documentary exhibits. The Originating Summons was later amended because the name of the 3rd respondent was given as Mr. Monday Patrick Iwara instead of Mr. Patrick Hycinth Iwara. The amended summons sought the determination of the following questions.
“1. Whether having regard to the plaintiff’s confirmation/affirmation at the 2nd Defendant’s congress/primaries held on the 11th and 12th January, 2011 as the only aspirant seeking nomination to the position of senatorial candidate into the Cross River Central Senatorial Constituency/District. The 2nd Defendant can validly forward the 3rd Defendant name to the 1st Defendant as its candidate for election into the Cross River Central Senatorial Constituency in the 2011 general election even when the 3rd defendant did not participate in the said congress/primaries.
2. Whether upon a true and proper construction and interpretation of Section 87(6) of the Electoral Act, 2010 as amended the 2nd defendant is not duty bound to forward the name of the plaintiff as its duly nominated candidate to contest for the senatorial election into the Cross River Central Senatorial Constituency in view of the plaintiff’s confirmation/affirmation at the 2nd defendant congress/primaries held on the 11th and 12th January, 2011 as the only aspirant seeking nomination to the position of Senatorial Candidate for Cross River Central Senatorial Constituency.
3. Whether the 2nd defendant can validly nominate, sponsor and present the 3rd defendant as its candidate for election into the Cross River Central Senatorial Constituency in the general election of 2011 when the 3rd Defendant did not participate in the 2nd Defendant congress/primaries for nomination of candidate for election into the Cross River Central Senatorial Constituency.”
The appellant sought the following reliefs:
“TAKE FURTHER NOTICE that upon the determination of the above questions the plaintiff shall pray the Honourable Court for the following reliefs:
1. A declaration that the plaintiff having been duly confirmed/affirmed at the 2nd Defendant’s congress/primaries held on the 11th and 12th day of January, 2011 as the only aspirant seeking nomination to the position of Senatorial candidate for the Cross River Central Senatorial Constituency is the person entitled to have his name forwarded to the 1st defendant as the 2nd Defendant’s candidate for Senatorial election into the Cross River Central Senatorial Constituency in the 2011 general elections.
2. A declaration that the plaintiff is the validly nominated candidate of the 2nd defendant to contest for election into the Cross River Central Senatorial Constituency in the 2011 general elections.
3. A declaration that the forwarding or submission of 3rd defendant’s name as the 2nd defendant’s candidate for election into the Cross River Central Senatorial Constituency in the 2011 general elections is wrongful, illegal, null, void and of no effect whatsoever.
4. An order of injunction restraining the 1st defendant, its servants, agents, officers and privies howsoever absolutely from publishing, announcing, using, compiling, clearing, verifying, approving or otherwise dealing in any manner whatsoever with the 3rd defendant as the 2nd defendant’s candidate for election into the Cross River Central Senatorial Constituency in the 2011 general elections.
5. An injunction restraining the 2nd defendant, its servants, agents, officers, and privies howsoever absolutely from presenting the 3rd defendant as its candidate for election into the Cross River Central Senatorial Constituency in the 2011 general elections.
6. An order directing the 1st and 2nd Defendants to recognize, accept, announce and deal with only the plaintiff as the 2nd defendant’s candidate for election into the Cross River Central Senatorial Constituency in the 2011 general elections.
7. An order directing the 2nd defendant to forward and present the plaintiff to the 1st defendant as its duly nominated candidate for election into the Cross River Central Senatorial Constituency in the 2011 general elections.”
The 2nd and 3rd respondents filed counter-affidavits supported by documentary exhibits. The counter-affidavits filed by the 2nd and 3rd respondents are very instructive in the determination of this appeal. The counter-affidavits were filed on the 7th and 8th day of March, 2011 by Cletus Ogbang who deposed as follows:
“1. Cletus Ogbang, Male, Engineer, Politician and a Nigeria residing at No. 48 Odukpani Road, Calabar, Nigeria do hereby make Oath and state as follows.
1. That I am the Chairman or the Electoral Committee and Deputy State Chairman of the Action Congress of Nigeria (2nd Defendant/Respondent) in this case and as such the facts of this case are within my personal knowledge save as otherwise stated. I have the consent of the purported 3rd defendant to depose to this affidavit on his behalf.
2. That I have read the affidavit of the plaintiff in support of his Originating Summons.
3. That paragraphs 1, 2, 8, 9, 10, 12, 14, 16, 17, 18, 19, 20, 21, 22, 23-29 are not to the knowledge of the 3rd defendant and are therefore vehemently denied and the plaintiff is invited to proof strictly all the averments deposed in these paragraphs of his affidavit.
4. That paragraphs 4, 5, 6, 11 of the affidavit of the Originating Summons is admitted.
5. That the Electoral Committee was the Committee entrusted with the responsibility for the conduct and supervision of the Primary Election of the 2nd defendant for the candidates of the 2nd defendant seeking nomination as candidates for the House of Assembly, National Assembly and Governorship in Cross River State for the April, 2011 general election.
6. That the plaintiff was disqualified from seeking nomination into the National Assembly for the Senate seat of the Central Senatorial District of Cross River State when he failed to pay the prescribed nomination fees of N600,000.00 as stipulated by the Guidelines of the 2nd defendant.
7. That the plaintiff was also disqualified when the 2nd defendant found that he was seeking nomination for both House of Representatives and Senate simultaneously. Attached herewith and marked as Exhibit “PAT” is the letter of disqualification written to the plaintiff which I personally handed to the plaintiff in Ogoja or about the 10th January, 2011.
8. That I know as a fact the person who paid the administrative/nomination fees of N600,000.00 imposed by the 2nd defendant and was duly nominated as prescribed by the Guidelines of the 2nd Defendant is the 3rd defendant.
9. That the plaintiff was unable to pay the sum of N600,000.00 as administrative/nomination fees imposed by the leadership of the 2nd defendant for aspirants into the Senate as prescribed in the Guidelines of the 2nd defendant.
10. That the plaintiff was an aspirant for the House of Representatives which he paid the sum of N300,000.00. The plaintiff did not take in the Primary Election after his disqualification by the 2nd defendant.
11. That the documents which the plaintiff has attached to his affidavit are mere contrivances by the plaintiff made by him for the purpose of instituting this case.
12. That when there was no candidate for the Senate for the Central Senatorial District of Cross River State, the plaintiff was urged by the leadership of the party to indicate interest for the Senate only on the condition that he paid the administrative/nomination fees of N600,000.00 as stipulated in the Guidelines of the 2nd defendant which the plaintiff was unable to pay which automatically disqualified from being nominated as candidate for the seat.
13. That the plaintiff was wrong to have indicated interest in both the House of Representatives and Senate contemporaneously and even went further to pay the administrative/nomination fees of N300,000.00 as prescribed by the Guidelines of the 2nd defendant.
14. That paragraph 15 of the affidavit is denied. That the plaintiff never paid the sum of N600,000.00 into the account of the 2nd defendant in the United Bank for Africa or in any other Bank. Exhibits “D1” and “D2” attached to the affidavit are contrived by the plaintiff to further his interest.
15. That the Guidelines did not prescribed that an aspirant would pay his nomination fees by installment. The plaintiff paid N250,000.00 and N50,000.00 when he was supposed to pay N600,000.00 as stipulated by the Guidelines of the 2nd defendant.
16. That the plaintiff merely pay another N300,000.00 in addition to the N300,000.00 he had previously paid to obtain the form for nomination as a candidate to the House of Representatives which is contrary to the Guidelines.
17. That the plaintiff was never recognized as an aspirant for the Central Senatorial District of Cross River State of Nigeria because he never paid the prescribed nomination fees and it was wrong for him to pay N300,000.00 because he had previously paid N300,000.00 to collect the nomination form for the House of Representatives.
18. That in the Report dated 14th day of January, 2011 addressed to the National Secretary of the Action Congress of Nigeria (which the plaintiff has attached to his affidavit in support of the Originating Summons marked as Exhibit “J”) it was noted thus, “It should however be noted for record purposes that Dr. Vincent Asor wanted to run for election into the house of representatives, at that time three (3) aspirants had shown interest and paid nomination fee for the same Federal Constituency including Dr. Vincent Asor…”
19. That the filing by the Plaintiff for nomination into two seats of both the Senate and House of Representatives led the leadership of the 2nd defendant to censure him by disqualifying from the contest after he failed to pay the nomination fees for seat even though the 2nd defendant gave the option of paying the nomination fees of N600,000.00 and forfeiture of the previous N300,000.00 paid for nomination in respect of the House of Representatives.
20. That the plaintiff never contested any primary election which by the Guidelines of the 2nd defendant ought to have commenced with the plaintiff submitting himself to election at the ward congresses within his constituency specially convened for that purpose.
21. That the plaintiff never submitted himself for election at the ward congresses within his constituency which comprises Abi, Boki, Ikom, Obubra, Etung and Yakurr Local Government Areas of Cross River State of Nigeria.
22. That Exhibit “H” attached to the affidavit of the plaintiff in support of his Originating Summons is a plain forgery and never emanated from the Secretariat of the 2nd defendant.
PARTICULARS OF FORGERY:
i. The 2nd defendant never designated the Nogak Polytechnic, Ikom as the Centre for the purpose of the affirmation of the nomination of the plaintiff on the 11th day of January, 2011.
ii. The signature of Gabriel Amanke who signed as E.O. Ikom is forged.
iii. The results of primary election of the 2nd defendant were not collated in the way and manner it is shown in Exhibit “H”.
iv. It is clear that the Exhibit “G” contradicts Exhibit “H” because if the sole aspirant of the plaintiff was already affirmed on the 11th January, 2011 there would be no need to hold another primary election in Obubra on the 12th day of January, 2011.
v. That Exhibit “K” contradicts Exhibit “H” because if the nomination of the plaintiff was already affirmed by the 11th day of January, 2011 there would be no need again to hold primary election in Obubra on the 12th day of January, 2011.
vi. The letter head paper of the 2nd defendant’s state secretariat is the authorize one for such an important thing as the result of primary election.
vii. The purported primary objection was not monitored by the 1st defendant as provided by the Electoral
Act.
viii. There is no official report by the 1st defendant on its monitoring of the election.
ix. Exhibits “G”, “H” and “K” attached to the affidavit of the plaintiff in support of the Originating Summons contradict one another.
23. That the failure of the plaintiff to submit himself to election at the ward congresses in the six Local Government Areas namely, Abi, Boki, Etung, Ikom, Obubra and Yakurr that make up the Central Senatorial District of Cross River State constitutes a violation of the Guidelines and Article 21.3(b) of the Constitution of the Action Congress of Nigeria in addition to his refusal; to pay the administrative/nomination fees of N600,000.00 which itself is a ground for the disqualification of the plaintiff from seeking nomination as a candidate of the 2nd defendant.
24. That the despite his disqualification by the 2nd defendant of the plaintiff for his failure to pay the prescribed fees, the plaintiff continued parading with contrived document’s including Exhibits “G”, “H” and “K” claiming that he won the nomination of the 2nd defendant.
25. That the plaintiff was warned in a letter to desist from parading himself as the candidate of the 2nd defendant for the Central Senatorial District of Cross River State. Attached herewith and marked as Exhibit “PAT3” is the letter from the 2nd defendant warning the plaintiff which I personally handed over to the plaintiff on or about the 14th day of January, 2011.
26. That no ward congresses were specially convened for the purpose of the plaintiff submitting himself for election at the ward congresses in all the Local Government Areas mentioned in paragraph 16 which make up the Central Senatorial District of the Cross River State of Nigeria as stipulated by the Guidelines of the 2nd defendant and the Electoral Act.
27. That no primary election took place at Obubra on the 12th January, 2011. The Electoral Committee of the 2nd defendant did not designate Obubra as the venue for the special congress of the 2nd defendant to nominate the candidate of the party for the Central Senatorial District.
28. That a Sample of the result sheet of the 2nd defendant which as used to collate results during the primary election is attached herewith and marked as Exhibit “PAT2”.
29. That Exhibit “G” attached to affidavit of the plaintiff is plain forgery.
PARTICULARS OF FORGERY:
i. The letter head paper used to collate the result of the purported primary election is not the letter head of the State Secretariat of the 2nd defendant.
ii. That result of the primary election throughout the State were not collated in letter head of Local Government Areas Chapter of the 2nd defendant but in specially designed result sheets issued by the Headquarters of the 2nd defendant to the various Electoral Committee assigned to conduct primary election of the party.
iii. That the purported election was not monitored by the Independent National Electoral Commission as stipulated in the Guidelines of the 2nd defendant.
iv. That the plaintiff was disqualified from seeking the nomination of the 2nd defendant for the Central Senatorial District of Cross River State which letter was handed over to the plaintiff by me on the 10th day of January, 2011.
v. That the name of the plaintiff is not in the Ward Register of the 2nd defendant in his ward in Abi Local Government Area.
30. That no special congress was convened by the 2nd defendant for the confirmation of the plaintiff which was monitored by the 1st defendant as required by the provisions of the Electoral Act, 2010 (as amended).
31. That the 2nd defendant had since submitted the name of the 3rd defendant who was duly nominated as the sole aspirant in respect of the Senate seat for the Central Senatorial District of Cross River State after the expression of interest of the plaintiff to seek the nomination of the 3rd defendant as its candidate for the Central Senatorial District was invalidated for his failure to pay nomination fees which is a condition precedent for any aspirant for nomination as candidate.
32. That the 3rd defendant paid the nomination fees of prescribed for aspirants for the Senate into the account of the 2nd defendant at the First Bank of Nigeria. Attach’E9 herewith and marked as Exhibit “P1” is the deposit slip which was issued to him on payment of the said N600,000.00.
33. That consequently, the said 3rd defendant was given the 2nd defendant’s nomination form. Attached herewith and marked as Exhibit “P2” is the nomination form of the 3rd defendant.
34. That the 3rd defendant was subsequently issued with INEC Form CF 001 which is attached herewith and marked as Exhibit “P3” and is the candidate of the plaintiff for the central Senatorial District for the April, 2011 general election.
35. That the 2nd defendant reserved the right to nominate any candidate of its choice as candidate to fill the position for the Central Senatorial District in the absence of an aspirant after the failure of the plaintiff to pay the appropriate nomination fees as prescribed by the Guidelines of the plaintiff and his subsequent disqualification.
36. That the plaintiff never withdrew his aspirant to seek nomination as the candidate of the 2nd defendant into the House of Representatives until this moment.
37. That the plaintiff is a fake; a pretender and an imposter who wants to use strong arms tactics and chicanery to get the senatorial ticket of the 2nd defendant even though it was the House of Representatives ticket which he sought for by paying nomination/administration fees prescribed by the 2nd defendant in its Guidelines.
38. That the plaintiff cannot compel the 2nd plaintiff after he was disqualified and his nomination invalidated for filing for nomination two positions which is contrary to the Guidelines of the 2nd defendant.
39. That Exhibits “G”, “H”, and “K” attached to the affidavit of the plaintiff are not contained in the authentic letter head paper of the 2nd defendant.
40. That it an official policy of the 2nd defendant that all its correspondences must be contain in the official letter head paper of the 2nd defendant bearing its logo and motto.
41. The Exhibit “J” attached to the affidavit in support of the originating summons is not the letter head paper of the td defendant which is contrary to the laid down policy of the 2nd defendant as averred on paragraph 40 hereof.
42. That this affidavit is made in good faith conscientiously believing the facts contained herein to be true and correct in accordance with the Oaths Act, 2004.”
I, Engr. Cletus Ogbang, Christian, Teacher, residing at 48 Odukpani Road, Calabar, Nigeria, do make Oath and state as follows:
“1. I am the Deputy Chairman Action Congress of Nigeria, Cross River State. I was also the Chairman of the Election Panel of the party in Cross River State responsible for all matters concerning the ward congresses and primaries in the State. I have the authority of the 2nd defendant to depose to this affidavit.
2. I have seen and read the Originating Summons of the plaintiff in this matter. The contents of the affidavit in support of the said summons are materially and substantially false.
3. Paragraph 12 of the affidavit is false. I have personally cross- checked the register of members in Ekuruku 1 ward in Abi Local Government and the plaintiff’s name is not in the register. He is therefore not a registered member of the 2nd defendant.
4. Paragraph 15 of the plaintiff’s affidavit is absolutely false. The plaintiff indicated interest to contest the House of Representatives seat and paid the sum of N300,000.00 representing N250,000.00 nomination fee and N50,000.00 administrative fee. I gave him a nomination for the House of Representatives. The said sum was paid on 7th day of January, 2011. See Exhibit “D1” to the plaintiff’s affidavit.
5. When the plaintiff changed his mind to run for the Senate I told him that he has to forfeit the money he has paid for the House of Representatives and advised him to pay the sum of N500,000.00 as nomination fee and N100,000.00 as administrative fee for the Senate as we are obligated to account to the National Headquarters of the party for every form given out.
6. The plaintiff rather went and made part payment of N300,000.00 to the account off the 2nd defendant on 11th day of January, 2011. The plaintiff was therefore being economical with the truth when he stated in paragraph 15 of his affidavit that he paid the sum of N600,000.00 on 7th day of January, 2011.
7. In answer to paragraph 16 of the affidavit, I state that I gave the Senate nomination form on trust to the plaintiff in the belief that as a gentleman he would heed my instructions to pay the complete fee for the Senate.
8. In answer to paragraph 17 of the affidavit, I state that on the 10th day of January when plaintiff came for screening before my panel, he had not even as much as paid the second N300,000.00 assuming that would have made him eligible. He however lied to the panel that he had paid a separate N600,000.00 outside what he paid for the House of Representatives but that he forgot the tellers in Port-Harcourt. We went ahead and screened him in the belief that he had actually paid the Senate nomination fee.
9. Payment of the nomination and administrative fees are conditions precedent for screening and participation in congresses and primaries of the 2nd defendant by aspirants.
10. When it became obvious to the panel that the plaintiff was playing pranks and had indeed not paid the prescribed fee, a letter was written to him formally disqualifying him for failure to fulfill that all important condition precedent. The said letter was personally served on him by me at Ogoja on 15th day of January, 2011 and he did not complain because he knew he had defaulted. The said letter is exhibited and marked Exhibit “MM1”.
11. The averments in paragraphs 18-23 of the plaintiff’s affidavit are of no moment since ab initio he did not qualify to contest the primaries of the 2nd defendant having failed to pay for the nomination form.
12. In answer to paragraphs 24, 25 and 26 of the plaintiff’s affidavit, I state that the panel which I was Chairman denied the plaintiff Form CF001 because he was not the 2nd defendant’s candidate for the Cross River State Central Senatorial District. The said form was available only to candidates.
13. Paragraphs 27, 28, 29 and 31 are incorrect. The 3rd defendant who is a bona fide member of the 2nd defendant paid the nomination fee as well as administrative fee and was given the party nomination form by me. Evidence of payment and the nomination form are exhibited and marked Exhibits “MM2” and “MM3” respectively.
14. The 3rd defendant was duly screened and went through all the processes provided for in the Electoral Act before he was issued with Form CF001. The said form is exhibited and marked Exhibit “MM4”.
15. Paragraph 33 is denied. The plaintiff has never been the defendant’s candidate for Central Senatorial District. He was never denied the ticket at the instance or instigation of the 2nd defendant’s gubernatorial candidate. He simply did not meet the elementary pre-requisite for being a candidate of the 2nd defendant.
16. There is no senate seat known as Cross River Central Senatorial Constituency.
17. Exhibit “1”, the list of the candidates was sent in error and before it was discovered that the plaintiff did not qualify as a candidate. Indeed, all the candidates of the three senatorial district have changed from what is shown on the list. The Southern Senatorial District now has Professor Eyo Etim Nyong; the Northern senatorial District has Mr. Patrick Agbe while the Central has Mr. Patrick Hycinth Iwara as candidates of the 2nd defendant.
17. The plaintiff is a mole of the People Democratic Party and funded by the party to institute this suit to disorganize the 2nd defendant so as to give easy victory to their very unpopular candidate for the Central Senatorial District seat.
18. I swear to this affidavit in good faith believing same to be true in accordance with the Oath’s Act, 2004.”
The appellant replied that it was the 2nd respondent that assured him not to vie for the House of Representatives but the Senate hence his change of mind. The 2nd respondent was estopped from denying that fact. The learned Federal trial Judge dismissed the originating summons on 11th day of March, 2011 hence this appeal by the appellant.
The appeal was filed on 1st day of April, 2011 and the appellant’s brief of argument on 27th day of June, 2012. Only the 3rd Respondent filed a brief on 19th June, 2012. The 1st and 2nd respondents did not though served the processes and hearing notices. When the appeal came up for hearing on 7th day of March, 2013 learned Counsel for the appellant adopted the brief of argument. With leave of the Court the brief was deemed as properly filed and served on the respondents the same day. Counsel to the 3rd respondent did not appear at the hearing though served hearing notice hence the appeal was deemed to have been argued by virtue of the provisions of Order 18 rule 9(4) of the Court of Appeal Rules, 2011. The appellant formulated the following issues for determination:
“(i) Whether the Appellant’s non filing of a reply affidavit to the 2nd and 3rd Respondents’ counter affidavit amounted to an admission capable of defeating the Appellant’s suit in the circumstances of this case.
(ii) Whether the failure of the learned trial Judge to consider and pronounce upon relevant evidence duly filed did not render his judgment perverse.
(iii) Whether a Court can grant a relief not claimed by a party to a suit.”
The 3rd respondent’s issues for determination are couched as follows:
“1. Whether the Court was correct when it held that the failure of the Appellant to file a reply affidavit to challenge or dispute the averments in paragraphs 3-13 of the counter-affidavit filed by the 2nd respondent alleging that the Appellant failed to pay the mandatory fees prescribed by the guidelines of the 2nd respondent for collection of the nomination form of the 2nd respondent for an aspirant to the Senate amounted to an admission of the facts averred in the said paragraphs and was therefore fatal to the case of the Appellant?
2. Whether the lower Court was right to have dismissed the case of the appellant regard being to the facts and circumstances of the case?
3. Whether the Court below granted relief not sought by the 3rd Respondent?”
ISSUES ONE AND TWO:
Learned Counsel argued issues one and two together. The argument by the appellant’s learned Counsel was that the learned trial Federal Judge had dismissed the originating summons because the appellant failed or neglected to file a “Reply Affidavit” or “Further Affidavit” in view of the facts deposed by the 2nd and 3rd respondents in their respective counter-affidavits. That once the facts deposed by the appellant were denied by the respondent the appellant did not pay the requisite fees of N600,000.00 as and when due the appellant should have filed a “Reply Affidavit” or “Further-Affidavit”. The failure to do so constituted an admission. Counsel argued that it was not in all cases that the Court will act on unchallenged evidence nor would it be held that the non-filing of a further affidavit constituted an admission, citing Okeaya-Inneh v. Quality Finance Ltd. (2006) All FWLR (Pt.300) 1632 at 1642-1643. The best way of showing payment of money for example in a bank was to tender the teller or acknowledgment receipt. Counsel citied Saleh vs. Bank of the North Ltd. (2006) All FWLR (Pt.310) 1600 at 1609. Counsel referred to the letter allegedly disqualifying him which the respondents deposed in their counter-affidavits to have been dated 1sth day of January, 2011 whereas the primaries held on 11th and 12th January, 2011. The learned trial Judge ought not to have placed reliance on the said letter. It was contended that where a witness is found to have made contradictory and inconsistent statements both should not be believed by the learned trial Judge, citing Jawondo v. Bakaro (2006) All FWLR (Pt.332) 1590 at 1609. The presumption that unchallenged and uncontroverted averments are deemed admitted does not hold in all situations. Where averments in affidavits are contradictory or if taken together are not sufficient to sustain applicant’s prayer, a counter-affidavit would be manifestly unnecessary, citing Kayode Lawrence v. Attorney-General of the Federation (2008) All FWLR (Pt.426) 1901 at 1925-1926. Counsel argued that the 2nd respondent urged the appellant to forgo his ambition to seek nomination into the House of Representative in preference for the Senate hence the 2nd respondent was estopped from arguing otherwise. Reference was made to Bank of the North vs. Yau (2001) 1 FWLR (Pt.54) 280 at 306. The appellant had no duty to file a “Reply Affidavit”. Learned Counsel’s further argument was that the learned trial Federal Judge did not evaluate the affidavit and documentary exhibits the appellant tendered in the lower Court, namely, Exhibits “I”, “J”, and “K” which emanated from the 2nd respondent. Reference was made to Duru vs. Nwosu (1989) 4 NWLR (Pt.133) 29; Anzaku vs. Governor, Nasarawa State (2006) All FWLR (Pt.303) 308 at 351-352; Oko vs. Ntukidem (1992) 4 NWLR (Pt.274) 124; Odinka vs. Muoghalu (1992) 4 NWLR (Pt.233) and Olarenwaju v. Governor of Oyo State (1992) 9 NWLR (Pt.265) 335. It was submitted that this amounted to a breach of the principle of fair hearing. This Court should appraise the affidavit and documentary exhibits. Issue one and two should be resolved in favour of the appellant.
The learned Counsel to the 3rd respondent replied that to challenge facts in the counter affidavit of the 2nd and 3rd respondents required the appellant to have filed a “reply affidavit” or a “Further and Better” affidavit to show that the appellant paid the requisite fee for nomination as a candidate to contest the election as stipulated by the Guidelines of the 2nd respondent. Counsel referred to Exhibits “C”, “D1” and “DW2” as showing how and when the appellant paid the fees. That the appellant alleged that he paid the fees of N300,000.0O on 7th day of January, 2011 for the House of Representatives forms and on 11th day of January, 2011 he paid another sum of N300,000.00 to the 2nd respondent for the senate. But this was denied by the 2nd respondent. Counsel referred to paragraphs 3-10 of the 2nd respondent’s counter-affidavit to which there was no response from the appellant. That even the payment of N300, 000.00 on 11th January, 2011 was after the screening of nominees on 10th day of January , 2011 which was the day of the primaries/affirmation. This was also not challenged by the appellant in any further affidavit. The learned trial Judge had no option but to believe the 2nd and 3rd respondents’ depositions and averments argued the learned Counsel.
Once the learned trial Federal Judge had evaluated the evidence and made findings of fact, it was not within the province of an appellate Court to interfere. Counsel cited Okolo vs. Uzoka (1978) 4 SC 77 at 86; Ebba vs. Ogodo (1984) 1 SCNLR 372 and Military Governor of Lagos State & 4 Ors. v. Adeyiga (2012) 2 SC (Pt.1) 68 at 79. A Further and Better Affidavit would have provided a platform for additional information not available in the first or main affidavit or in a reply to a counter affidavit, argued learned Counsel. Reference was made to Sentinel Assurance Co. Ltd. vs. Societe Generale Bank Nigeria Ltd. (19921 2 NWLR (Pt.224) 503 and Maraya Plastics Industries Ltd. vs. Inland Bank of Nigeria Plc (2012) 7 NWLR (Pt.765) 109. The onus of proving the case rested on the appellant and not the 3rd respondent even if there were contradictions in the counter-affidavits and exhibits put forward by the 2nd and 3rd respondents. Counsel contended that in cases fought on affidavits the evidence is contained in those affidavits. Counsel referred to Mrs. Mercy Sabina Forson vs. Calabar Municipal Government & Anor (2003) 9 NWLR (Pt.878) 411. Besides, the trial Court did not give credence to Exhibits “G” and “H” the appellant relied upon to prove payment of the N600, 000.00 fee. There was no appeal against the finding hence the Appeal Court is not in a position to interfere and set aside the decision of the lower Court. The trial Court properly evaluated the evidence, citing Mogaji vs. Odofin (1978) 4 SC 91. Learned Counsel urged the Court to resolve issues one and two against the appellant.
ISSUE THREE:
It was submitted by the learned Counsel to the appellant on issue three that the learned trial Federal Judge granted a relief which was not asked by the 3rd respondent. Counsel cited Henry Awoniyi & 2 Ors. vs. The Registered Trustees of the Rosicrucian Order Amorc (Nigeria) (2000) FWLR (Pt.1592) 1617 where it was held that no Court is to be a father Christmas. That Section 31(1) of the Electoral Act, 2010 as amended was no authority to have granted reliefs to the 3rd respondent by declaring him to be the candidate of the 2nd respondent at the election to be held in April, 2011. Counsel urged this Court to resolve issue three in favour of the appellant.
Learned Counsel to the 3rd respondent replied that the learned trial Judge did not grant reliefs not claimed by the 3rd respondent. The Court did so by virtue of Section 31(1) of the Electoral Act, 2010 as amended. This was based on evaluation of the evidence before the Court. In view of the fact that the learned trial Judge had dismissed the appellant’s case, argued learned Counsel, the remedy granted was hypothetical or academic and not appealable, not being the ratio decidendi of the judgment. Reference was made to Afro Continental (Nig.) Ltd. vs. Ayantuyi (1995) 9 NWLR (Pt.420) 411 at 435; UTC (Nig.) Ltd. vs. Pamotei (1989) 2 NWLR (Pt.103) 244 at 293; Bamgboye vs. University of Ilorin (1991) 8 NWLR (Pt.207) 1; Rossek vs. ACB (1993) 8 NWLR (Pt.312) 382 and Mohammed vs. Lawal (2006) 9 NWLR (Pt.985) 400. Issue three should be discountenanced because it is not every error that would result into the Court of Appeal setting aside the judgment of the lower Court, citing Agu vs. Nnada (2002) 18 NWLR (Pt.798) 103. Counsel urged that issue three should be resolved against the appellant.
ISSUES ONE, TWO AND THREE:
I shall consider these issues together for reasons of convenience; besides they are interwoven.
The onus of showing how and when requisite fee of N600,000.00 to contest the primaries was paid rested on the appellant. Secondly, the appellant had to show that at the primaries he had the highest number of votes from the delegates that voted during the primaries and he was declared the winner; nevertheless the 2nd respondent did not forward his name to the 1st respondent as the candidate to contest the election on the platform of the 2nd respondent into the senate. Where documents are exhibited to an affidavit they should be used as acid test for the evaluation of the facts deposed to in an affidavit or counter-affidavit. See Onwuteako v. Davco Technical Services Supplies Ltd. (1980) 2 FCA 62 at 77; Fashanu S. Adekoya (1974) 1 All NLR (Pt.1) 35 at 41; Olujinle vs. Adeagbo (1988) 2 NWLR (Pt.75) 238 at 253; Reynard vs. Allan (1934) 2 WACA 52 at 53. Documents are tendered and admitted when their terms are in dispute. See Kano vs. Oyelakin (1993) 3 SCNJ 65. But if they are not there will be no need to tender them. See Owosho vs. Dada (1984) 7 SC 149 at 166.

Order 3 rule 9 of the Federal High Court (Civil Procedure Rules, 2009 provides as follows:
“9(1) An originating summons shall be in the Forms 3, 4, or 5 to these Rules, with such variations as circumstances may require.
(2) An originating summons shall be accompanied by:
(a) An affidavit setting out the facts relied upon; and
(b) Copies of all the exhibits to be relied upon.”
The summons shall be served on the defendant or defendants as the case may be. See Order 3 rules 13-14 of the Rules. An “originating summons” is defined as including a “Court process” under Order 1 rule 5 of the Federal High Court (Civil Procedure) Rules, 2009. Upon service of the originating summons Order 7 rule 1(1) of the Rules (supra) provides that:
“1 (1) A defendant served with an originating process shall within thirty days file in the Registry, along with the processes mentioned in Order 13 rule 2(1), the original and copy of a duly completed and signed memorandum of appearance as in Form II with such modification or variations as circumstance may require.
(2) On receipt of the memorandum of appearance, the Registrar shall make entry thereof and stamp the copy with the seal showing the date he received it and return the sealed copy to the person making the appearance.
(3) If a defendant files an appearance after the time prescribed in the originating process, he shall pay to the Court an additional fee of N200.00 (Two Hundred Naira) for each day of default.
2(1) A defendant appearing in person shall state in the memorandum or appearance an address for service which shall be within the Judicial Division of the Court including mobile telephone number and E-mail address where available.
(2) Where a defendant appears by a legal practitioner, the legal practitioner shall state in the memorandum of appearance his place of business and an address for service which shall be within the Judicial Division of the Court including mobile telephone number and E-mail address where available and where any such legal practitioner is only the agent of another legal practitioner, he shall also insert the name and place of business of the principal legal practitioner.
(3) The Registrar shall not accept any memorandum of appearance which does not contain an address for service.”
An “originating process” is also defined under Order 1 rule 5 of the Rules (supra) as “meaning any Court process by which a suit is initiated.” Order 13 rule 2(1) of the Rules further provides as follows:
“2(1) Subject to sub-rule (2) of this rule, a defendant who enters an appearance and intends to defend the action shall, unless the Court gives leave to the contrary serve:
(a) a statement of defence which may include any preliminary objection he wishes to raise to the plaintiff’s action;
(b) list of witnesses to be called at the trial;
(c) written statement on oath of the witnesses:
(d) copies of every documents to be relied on at the trial; and
(e) list of non-documentary exhibits at the time the time he files his memorandum of appearance.”
But Order 13 rule 2(1) of the Rules (supra) relates to actions fought on pleadings. An originating summons is not fought on pleadings but affidavit and documentary exhibits. In Attorney-General of Bendel State vs. Attorney-General of the Federation and 22 Ors. (1981) 1 FNLR 179 the appellant sought by way of originating summons a declaration that a Bill of the National Assembly contravened the provisions of Section 149 or item A1 (a) of Part 2 of the Second Schedule to the Constitution of the Federal Republic of Nigeria, 1979. That to clothe same with legality this could only be in accordance with the procedure prescribed in Section 55 of the said Constitution and so forth. The plaintiffs relied on affidavit and documentary exhibits. The respondents filed a counter affidavit. At the hearing the learned Federal Attorney-General and Counsel appearing for other respondents urged the Supreme Court to order pleadings since the facts were in dispute. Chief Williams, SAN for the plaintiff contended that since the facts sworn in certain paragraphs of the counter-affidavit were not fatal to his case, he did not want pleadings to be ordered but was prepared to take the risk particularly as all the questions for determination were of law, and arguments would eventually turn on the interpretation of all the relevant sections of the constitution. The Supreme Court refused to order pleadings since the case would be heard on the affidavits and documents exhibited therewith. Bello, JSC (as he then was) held at page 204 that:
“It is apparent from the foregoing that the Legal right of the plaintiff is not a question of fact which must be pleaded but it is a question of constitutional law which need not be pleaded. Furthermore, the present suit is based on originating summons and not on statement of claim; hence the rules of pleadings governing statement of claim are inapplicable. For these reasons I find the second objection to be untenable.”
I have drawn attention to the provisions of Order 7 rule 1(1) and Order 13 rule 2(1) of the Rules (supra) to show that they are not meant to govern proceedings to be conducted by originating summons. I have further drawn attention to the case of Attorney-General of Bendel State vs. Attorney-General of the Federation & 22 Ors. (supra) to show originating summons is to be employed where the legal right of the plaintiff is not dependent on questions of facts which must be pleaded but where it is a question of constitutional law which need not be pleaded.
Time without number the Courts have held that where the facts are likely to be contested which may for instance require the calling of oral evidence to resolve material controversies originating summons should not be utilized. The learned trial Judge should order pleadings. See NBN vs. Alakija & Or. (1978) 9 & 10 SC 59; Doherty vs. Doherty (1908) NMLR 241; Akunnia vs. Attorney-General of the Federation (1977) 5 SC 161 at 177 and Ejura vs. Idris (2006) All FWLR (Pt.318) 646 at 663 paragraphs “E-H”.
Originating summons is to be brought only if it can be shown that the provisions of either Order 3 rule 6 or 7 as the case may be of the Federal High Court (Civil Procedure) Rules, 2009 is applicable. The provisions read as follows:
“6. Any person claiming to be interested under a deed, will, enactment or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the-rights of the persons interested.
7. Any person claiming any legal or equitable right in a case where the determination of the question whether such a person is entitled to the right depends upon a question of construction of an enactment, may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed.”
A question of construction or interpretation of a deed wills, enactment or other written instrument must arise and be determined before the legal or equitable rights of the parties may be declared by the Court not the other way round.
The learned trial Judge had to determine the originating summons based on affidavits and documentary exhibits. Section 115 to 116 of the Evidence Act, 2011 reads as follows:
“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 stateHd, and reasonable particulars shall be given respecting the informant, and the time, place and circumstance of the information.
116. When there are before a Court affidavits that are irreconcilably in conflict on crucial facts, the court shall for the purpose of resolving the conflict arising from the affidavit evidence, ask the parties to proffer oral evidence as to such facts, and shall hear any such oral evidence of the deponents of the affidavits and such other witnesses as may be called by the parties.”
When the affidavit and counter-affidavits conflicts materially and there is need to file a “reply” or “Further and Better Affidavit” it is evident that the procedure by way of originating summons ought not to have been resorted to in the first place. I may even venture to hold that there is nothing like “Reply Affidavit” or “Better and Further Affidavit” under sections 107-120 of the Evidence Act, 2011, notwithstanding that “Further and Better Affidavits” or “Better and Further Affidavits” have been in use over the ages. Even then it has been held by some judges of repute that “Further and Better Affidavits” is to be filed with the leave of the Court. See Onwuagbu v. Ezekwesili (1975) 5 ECSLR 215 at 217 and Okoli vs. Okoli (1986) 4 C.A. (Pt.1) 11 at 15. But in Nwosu v. Mbakwe (1973) 3 ECSLR (Pt.1) 136 Oputa, J., (as he then was) disagreed.In any case the proceedings in question were commenced by originating summons. Order 1 rule 4 of the Federal High Court (Civil Procedure) Rules, 2009 provides that, “The fundamental objective of these Rules is, for just and expeditious disposition of cases.” I do not think that the non-filing of a “reply affidavit” or a “Further and Better Affidavit” per se should have led to the dismissal of the appellant’s originating summons. I wish to opine that there ought not to be filed affidavits that are materially in conflict with the facts deposed in support of an originating summons. Once they conflict and cannot be resolved except by oral hearing, the matter should be transferred to the ordinary cause list where pleadings will be ordered. The reason is that at that stage the originating summons shall no longer been heard within the limit of the provision of Order 3 rule and 7 of the Federal High Court (Civil Procedure) Rules, 2009.
I shall give reasons why there was no need to file a “Reply Affidavit” or “Further and Better Affidavit.”
Cletus Ogbang the State Deputy Chairman of the 2nd respondent and alleged Chairman of the 2nd respondent’s Electoral Committee tried to show that the successful candidate at the primaries held on 11th and 12th January, 2011 was the 3rd respondent. But this is in contrasts with documents signed by Mr. Emmanuel Okwu (AEO Obubra); Chisma Nkwar (CIO) Security officer, Mr. Oke J. Oke (PEO) Obubra, Cpl Egbe Etim (Security officer) and Eteng Okon (Returning officer) the Committee that screened the candidates for the election showing the appellant was returned unopposed at the primaries held on 12th January, 2011. There is dispute as to what date the screening of the candidates took place, namely, 10th, 11th or 12th January, 2011! There is material conflict as to who was the successful candidate at the primaries from the bundle of the documents emanating from the Screening Committee supported by the State Secretary of the 2nd respondent contrary to the State Deputy Chairman of the 2nd respondent. The documents made available by the appellant shows that he was the favoured candidate for the Central Senatorial District, Obubra/Etung Federal constituency. The documentary evidence shows that Pastor Ansa Effanga, the
State Secretary of the 2nd respondent sent the list of the party’s candidates to the National Chairman of the 2nd Respondent at their National Headquarters, Abuja on 12th January, 2011. The appellant’s name appears as the sole candidate for the Central Senatorial District. See pages 29-34 of the printed record. As it then stood the documents emanating from the committee that screened the candidates for the primaries is supported by the State Secretary of the 2nd respondent contrary to those put forward by the 2nd and 3rd respondents in favour of the 3rd respondent. It was therefore not a question of filing a “Reply Affidavit” or “Further and Better Affidavit” as portrayed by the learned trial Federal Judge. The matter involved the calling of oral evidence to resolve the material conflict in the affidavit and documentary exhibits. See Falobi v. Falobi (1976) 9 & 10 SC 1 at 15; Olu-Ibukun vs. Olu-Ibukun (1974) 2SC 41 at 48.
The learned trial Federal Judge gave reasons for dismissing the appellant’s originating summons after considering the conflicting affidavits and documentary exhibits at page 493 to 495 of the printed record as follows:
“2nd Defendant’s guidelines, Exhibit “C”, 2nd column, title Aspirants for National Assembly stipulates administrative nomination fee of N600, 000.00 payable by an aspirant for senate.
Exhibit “D1” and “D2” shows the plaintiff paid the sum of N300,000.00 remaining N250,000.00 normal fee and N50,000.00 administrative fees only on 7th day of January, 2011 for House of Representative forms.
On 11/01/2011, plaintiff paid another N300,000.00 to the td defendant. The plaintiff states the sum of N300,000.00 was his outstanding balance whilst the 2nd defendant vehemently denied it saying the plaintiff was expected to pay the total sum of N600,000.00 distinct from the earlier sum paid for House of Representative for All purpose. I refer to paragraphs 3-10 of the 2nd Respondent’s affidavit to which these (sic) was no reply or response by the plaintiff or Counsel. The plaintiff paid the sum of N310,000.00 on 11th day of January, 2011 after the screening of 10th day of January, 2011 on the day of primaries/affirmation.
It is settled law that where the opposing party does not challenge depositions in an affidavit, such evidence or depositions are deemed to stand and can be admitted as the true facts. See (i) Long John vs. Blakk (1998) 6 NWLR (Pt.555) 524 at 532 SC (ii) Olagunyi v. Oyeniran (1996) 6 NWLR (Pt.453) 127 (iii) Ogoejeofo v. Ogoejeofo (2000) 3 NWLR (Pt.966) 205 SC.
Furthermore, an admission of fact by a party against his admissible (sic) and needs no further proof. See (i) Awote v. Owodunni (No. 2) 1987) 2 NWLR (pt. 57) 367 SC; (ii) Akpan v. Umoh (1999) 11 NWLR (pt. 627) 349 SC (iii) Agbamelo v. UBN Ltd. (2000) 4 SC (pt. 1) 233.The plaintiff in the circumstances from the above findings, the plaintiff, Dr. Vincent Ele Asor did not fulfill the guidelines of the 2nd defendant as he was not an aspirant and/or 2nd defendant’s candidate for the Cross River senatorial central position in forthcoming April, 2011 general elections.
In the 2nd and 3rd Defendant’ Court process they aver that the 2nd Defendant organized primaries which their 3rd Defendant emerged as the Senatorial candidate for Central Senatorial District on their platform. This material averment of this counter-affidavit was not rebutted.
Section 87(4)(c), and (6) of the Electoral Act, 2010 as Amended reads:
4. A political party that adopts the system of indirect primaries for the choice of its candidate shall adopt the procedure outlined below:-
(c) In the case of nominations to the position of a Senatorial candidate, House of Representatives and State House of Assembly, a political party shall, where they intends to sponsor candidates:-
(i) hold special congresses in the senatorial District, Federal Constituency and the State Assembly constituency respectively, with delegates voting for each or the aspirants in designated centre on specified dates.
(ii) The aspirant with the highest number of votes at the end of voting shall be declared the winner of the primaries of the party and the aspirant’s name shall be forwarded to the Independent National Electoral commission as the candidate of the party.
6. Where there is only one aspirant in a political party for any of the elective positions mentioned in subsection (4)(a), (b), (c), and (d), the party shall convene a special convention or congress at a designated centre on a specified date for the confirmation of such aspirant and the name of the aspirant shall be forwarded to the Independent National Electoral Commission as the candidate of the party.
From this Court earlier findings on issue 1 in this judgment, issue 2 has become an academic exercise having held that the plaintiff did not qualify not to be an as aspirant in the 2nd defendant’s primaries with the con of Section 87(6) of the Electoral Act as Amended. It is also the Court opinion that Exhibits “G” and “H” contain inconsistencies, material contradictions, of doubtful validity and are hereby discountenanced by the Court.”
A deponent is called “the witness” under the Section 115(1) of the Act (supra). The depositions stand as the sworn evidence of the witness or witnesses. See Bamaiyi v. The State (2001) 4 SC (Pt. 1) 18; Banque De L’ Afrique Occidental v. Alhaji Baba Sharfadi & Ors. (1963) NNLR 21. The purpose of an affidavit is not to provide legal arguments, conclusions objections or prayers but to adduce oral and documentary evidence to support the relief claimed on the motion paper. There are most appropriate on the motion paper. See Habib v. Principal Immigration Officer (1958) 3 FSC 75/77. Where the affidavit in support of the reliefs claimed is useless or self contradictory, lacking in merit or credibility, etc, there would be no need to file a counter-affidavit. See Royal Exchange Assurance vs. Aswani iles Industries Ltd. (1992) 2 SCNJ (Pt.2) 346 at 355; Bank of Baroda vs. Mercantile Bank Ltd. (1987) 3 NWLR (Pt.60) 233 at 240 and 242.

For similar reasons there will be no need to file a Further and Better Affidavit or what the 3rd respondent’s Counsel Calls “Reply Affidavit” if the facts in the counter-affidavit are materially in conflict and would require resolution by oral evidence. Alternatively there would be no need for a “Reply Affidavit” or “Further and Better Affidavit” if all the available evidence had been deposed in the affidavit in support of the originating summons. Where such a need has arisen, the proceedings will be taken out of the realm of originating summons for there will be the need to resolve these conflicts with oral hearing except if the documents available may be used to resolve the conflicts. See Nwosu v. Imo State Environmental Sanitation Authority & Ors. (1990) 4 SCNJ 97 at 115. There will also be no need for oral hearing if only points of law are involved. See Oketie v. Olughor (1995) 5 SCNJ 217 at 230; Momah vs. UAB petroleum Inc. (2000) 2 SC 142 and Sanusi Bros. (Nig.) Ltd. vs. Cotia Commercio Exportacao, etc, (2000) 6 SC (Pt.3) 43.

In Duru & ors. v. Nwosu (1989) 4 NWLR (pt. 113) 24 at 55 paragraphs “F”-“H” the Supreme Court held that:
“More relevantly, it is now settled that the only method of evaluating evidence called by both sides in a civil case is to put each set of evidence on either side of an imaginary balance and weigh them together. Whichever outweighs the other in terms of probative value ought to be accepted.
I wish to seize this opportunity to emphasize that this is the only proper method of evaluating evidence in a civil case. In the process, if on an issue one of the parties fails to call evidence, the evidence called by the other side on the issue ought normally to be accepted unless it is of such a nature and quality that no reasonable tribunal will accept it. The onus of proof in such a case is discharged on a minimal of proof: See Nwabuoku v. Ottih (1961) 1 All NLR 487.”Can it be said that the appellant did not adduce oral (affidavit) and documentary exhibits to prove that he was entitled to the reliefs he seeks in the originating summons? What did the learned trial Judge say concerning Exhibits “G” “H”, “J”, “K” and “L” put forward by the appellant which materially conflicted with Exhibits “PAT1”, “PAT2”, “MM1-MM4” put forward by the 2nd and 3rd respondents in their respective affidavits? At page 488 of the printed record the learned trial Federal Judge merely summarized the facts relied upon by the appellant to wit:
“According to him he was screened on 10th day of January, 2011, participated in the primaries/congress of 11th and 12th January, 2011, confirmed and affirmed as the sole aspirant seeking nomination for the position of 2nd defendant’s Senatorial candidate for Cross River Central Senatorial Constituency. He attached Exhibit “G”, “H” – copies of the result as well as Exhibits “I”, “J” and “K” being 2nd defendant’s Cross River State Senatorial list, 2nd defendant’s Screening Committee Report and 1st defendant’s report on 2nd defendant’s wards congress/primaries held at Obubra.
The plaintiff’s complaint in the suit is that despite satisfying all formalities and conditions precedent in the td defendant’s guidelines, as well as being affirmed as the candidate, the 2nd defendant has refused or failed to furnish him with Form CF 001 – Affidavit in support of personal particulars seeking election to the office of senate to enable him contest the said senatorial seat on the platform of the 2nd defendant, rather the 2nd defendant has given the said FORM CF 002 to the 3rd defendant whose name has been forwarded to the 1st Defendant.
It is his contention that the 3rd defendant, Patrick I. Iwara is a PDP Decampee, was not screened or participated in the primaries neither did he purchase nomination forms.”
The learned trial Federal Judge should have evaluated these documentary exhibits along with the evidence adduced by way of affidavit and counter affidavits to arrive at a just decision. See Tangale Traditional Council v. Fawu (2002) FWLR (Pt.117) 1137; Ogun v. Asemah (2002) FWLR (Pt.128) 1328. Apart from that where there is conflict in the documentary evidence the learned trial Judge also has the duty to evaluate same and give reasons for preferring one set of documentary evidence to the other. See S.F.F. Ltd. v. S.G.B. (Nigeria) Ltd. (2003) FWLR (pt.186) 693 at 703. The learned trial Federal Judge failed to do this. In my humble view the learned trial Federal Judge had no credible evidence to have arrived at the decision that:
“By virtue of section 31(1) of Electoral Act as amended the 3rd defendant, Patrick Monday Iwara is the 2nd defendant’s Senatorial candidate for Cross River State Central Constituency in the forthcoming April, 2011 elections.”
See page 495 lines 1 – 18 of the printed record.
The 3rd respondent did not counter-claim nor seek relief that the learned trial Judge should declare him the 2nd respondent’s Senatorial candidate for Cross River State Central Constituency in the forthcoming April, 2011 elections. No party is entitled to any relief not claimed at the trial. See Nigerian Housing Development Society v. Mumuni (1977) 2 SC 57 at 81; Egri v. Uperi (1974) 1 NMLR 22 and Njoku v. Eme (1973) 5 SC 29 at 300. This Court is not in a position to call for oral hearing neither to determine the authenticity of the documents relied upon by the parties at the trial nor to resolve the material conflicts in their respective affidavits. Where a set of documents from the committee that screened the candidates at the primaries is supported by the State Secretary of the 2nd Respondent but the Deputy Chairman of the 2nd respondent deposed in the counter-affidavit supported by documentary exhibits that the screening favoured the 3rd respondent, only oral evidence can resolve such material conflicts. Moreover, whether the appellant and the 3rd respondent were eligible to contest the primaries or not became a question to be determined by the trial Court. Who was the Chairman of the Electoral Committee that screened the candidates and on what date, became an issue in dispute. The Appeal Court is to re-evaluate evidence where the issue of credibility does not arise. See Ajadi vs. Olarenwaju (1969) 1 All NLR 382; Agbonifa vs. Airereoba (1988) 2 SCNJ 146 at 156 and Fatoyinbo vs. Williams (1956) 1 FSC 87. Furthermore, where the authenticity of documentary exhibits are challenged, the makers should be called to testify at the hearing. See G. Chitex Industries Ltd. vs. Oceanic Bank Int. (Nig.) Ltd. (2005) All FWLR (Pt.276) 610 at 624 paragraphs “D”- “E”. Armed with the conflicting documentary exhibits by the appellant and the 2nd and 3rd respondents, the question is whose name should have been forwarded by the 2nd respondent to the 1st respondent to represent her at the election to be held in April, 2011? That question can only be determined at the oral rehearing. Again who should have forwarded the name of the 2nd respondent’s candidate to the 1st respondent became an issue in controversy which should be resolved by oral hearing. See Adeogun vs. Fasogbon (2011) 2 & 3 MJSC (pt.2) 103 at 141.
For all these reasons, I resolve issues one, two and three in favour of the appellant by allowing the appeal. I remit the originating summons to the lower Court for hearing and determination before another learned Federal Judge of Federal High Court of Justice. Parties are to file and exchange pleadings to enable the suit to be tried speedily. Parties are to bear their respective costs.

UZO I. NDUKWE-ANYANWU J.C.A: I had the privilege of reading in draft form; the judgment just delivered, by my learned brother Joseph Tine Tur, JCA. I agree that, there are vexed issues which ought to be resolved by the trial court through oral evidence. For the more comprehensive reasons in the lead judgment, I too allow the appeal. I abide by all the consequential orders contained in the lead judgment.

ONYEKACHI A. OTISI J.C.A: I have had the opportunity of reading in draft the Judgment just delivered by my learned Brother, Joseph Tine Tur JCA. I am in agreement with his conclusion, and will only make these few comments.
The Federal High Court (Civil Procedure) Rules 2009 provide for the Originating Summons procedure. Order 3 Rules 6, 7, and 8 of the Rules provide that:
6. Any person claiming to be interested under a deed, will, enactment or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.
7. Any person claiming any legal or equitable right in a case where the determination of the question whether such a person is entitled to the right depends upon a question of construction of an enactment, may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed.
8. A Judge shall not be bound to determine any such question of construction if in the Judge’s opinion it ought not to be determined on originating summons but may make such orders as the Judge deems fit.
The nature of originating summons has been very well pronounced in a number of legal authorities. The Supreme Court, per Onnoghen JSC in Dapianlong V. Dariye (2007) 8 MJSC 140, (2007) 4 S. C. (PT. III) 18 said that:
“The originating summons procedure is a means of commencement of action adopted in cases where the facts are not in dispute or there is no likelihood, of their being in dispute and when the sole or principal question in issue is or is likely to be one directed at the construction of a written law, Constitution or any instrument or of any deed, will, contract or other document or other question of law or in a circumstance where there is not likely to be any dispute as to the facts. In general terms, it is used for non-contentious actions or matters i.e. those actions where facts are not likely to be in dispute, in actions commenced by originating summons, pleadings are not required rather affidavit evidence are employed: see Director, State Security Service v. Agbakoba (1999) 3 NWLR (Pt. 595) 314: Din v. A-G of the Federation (1986) 1 NWLR (Pt. 17) 471: Keyamo v. House of Assembly Lagos State & Ors (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 of 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. (Order 38 rule 1 and Order 44 rule 1 L). 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 dealings 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. If there are serious disputes as to facts then a normal writ must be taken out and not originating summons; Doherty v. Doherty (1968) NMLR 241. In matters where facts are not in issue the originating summons, which must be supported by an affidavit of the facts must be taken out and will become operative once a Judge in chambers has signed it thus giving direction for its service.”
See also: Inakoju v. Adeleke (2007) CLR 1 (f) (SC), (2007) 2 MJSC 1: Peters-Pam v. Muhammed (2008) CLR 5(i) (SC), (2008) 9 MJSC 117, FGN v Zebra Energy (Nig.) Limited (2002) CLR 12 (a) (SC), (2003) 1 MJSC 3.Actions commenced by originating summons are fought only on affidavit evidence only. Order 3 Rule 9(2)(a) and (b) provides that originating summons shall be accompanied by an affidavit setting out the facts relied upon; and, copies of all the exhibits to be relied upon.
The procedure for originating summons as provided under the Rules does not provide for the originating summons procedure to be employed where the complaint of the plaintiff makes allegations against a defendant which require oral evidence and an opportunity for the defendant to cross-examine witnesses testifying against him.
In Oba Osunbade V. Oba Oyewunmi 30 NSCQR 434 of 449, the Supreme Court per Ogbuagu JSC said:
“It is now firmly settled that on Originating Summons, is an unusual method of commencing proceedings in the High Court and it is confined to cases where special statutory provisions exist for its application. It is not advisable, to make use of this procedure for hostile proceedings where the facts are in dispute as in the instant case leading to this appeal.”
As has therefore been well articulated in the lead Judgment, where there is likely to be substantial dispute of facts, the suit ought to be brought by writ of summons for the dispute to be properly determined. Similarly, when the relief or reliefs sought by a claimant are declaratory in nature, the action must be brought by writ of summons, the facts being in disputed.
The learned trial Judge having regard to the conflicting sets of affidavit and documentary evidence before him could not hove judiciously determined the matter before him without recourse to oral evidence. The issues in controversy can only be comprehensively resolved upon oral evidence, which would give opportunity for cross-examination.
For these reasons and for the more comprehensive reasons given in the lead Judgment, I also allow the appeal.
Rather than delay any further the just resolution of the issues in controversy by having the Appellant file a fresh action by way of writ of summons, I am of the firm view that this Court ought to, pursuant to the provisions of Section 15 of the Court of Appeal Act 2004, and, the provisions of Order 3 Rule 8 of the Federal High Court (Civil Procedure) Rules 2009, convert the originating summons filed by the Appellant to writ of summons and order the parties to file pleadings.
I abide by the orders made in the lead judgment.