DR YUSUF NAGOGO V. CONGRESS FOR PROGRESSIVE CHANGE (C.P.C.) & ORS
(2011)LCN/5011(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 14th day of December, 2011
CA/MK/EPT/125/2011
RATIO
IRREGULARITY IN COMMENCING AN ACTION: WHETHER A PARTY CAN COMPLAIN OF AN IRREGULAR PROCEDURE HE FAILED TO CHALLENGE ITS CORRECTNESS AT THE COMMENCEMENT OF THE PROCEEDINGS
It is true that a party cannot take advantage of the irregularity which he has acquiesced to in Adebayo & Ors. V. Shonowo & Ors. (1969) 1 NWLR 176, an irregular procedure was followed in commencing an action. The Supreme Court (per Coker, J.S.C. as he then was) observed, at page 90 of the report, thus: “even if the procedure adopted by the applicant Adebayo were wrong, we think that it is now late in the day for the directors to complain about it. They failed to challenge the correctness of the procedure at the commencement of the proceedings or on their entry into the case. PER MOHAMMED LADAN TSAMIYA J.C.A
AFFIDAVIT EVIDENCE/ COUNTER-AFFIDAVIT: POSITION OF THE LAW WHERE THE FACTS IN AN AFFIDAVIT AND COUNTER-AFFIDAVIT ARE IN CONFLICT SUBSTANTIALLY
The law is trite that where the facts in an affidavit and counter-affidavit are in conflict substantially, it becomes imperative that in such a situation oral evidence shall be required and given to resolve the conflict. See C.U. Mbaji & Sons Ltd. V. A.I. Ahunanya (2000) 8 NWLR (Pt. 669) 498. PER MOHAMMED LADAN TSAMIYA J.C.A
WHAT MUST BE CONSIDERED IN DECIDING WHETHER OR NOT CONTENTS OF THE AFFIDAVIT IN SUPPORT ARE IN DISPUTE/CONFLICT WITH THAT OF THE COUNTER-AFFIDAVIT
In deciding whether or not contents of the affidavit in support are in dispute/conflict with that of the counter-affidavit, Tobi, J.S.C. (as he then was) stated in L.S.P.D.C. V. Adoled Stamm International (Nig) Ltd. (2005) 2 NWLR (Pt. 910) 63 @ 503:- For conflict in affidavit to receive the attention of the court, the conflict must really affect the live issues involved in the case. The conflict must be tangible not intangible; it must be substantial and fundamental to the live issues in the case, where conflicts are peripheral, cosmative, in articulate or mere force orchestrated by the party, a court of law will not order that oral evidence be led to resolve or reconcile the conflict. PER MOHAMMED LADAN TSAMIYA J.C.A
WHETHER IT IS THE FILING OF A COUNTER AFFIDAVIT THAT MAKES A CLAIM HOSTILE
I wish to point out that it is not the filing of counter affidavit per se that makes the claim hostile. See Etim vs. Obot (2010) 12 NWLR (Pt. 1207) 108 @ 155 p. G – H where this court decided that:- “It is not the filing of the counter-affidavit to oppose the claim in the originating summons that makes such proceedings to be contentious or to result in substantial disputed facts. The nature of the claim(s) and fact(s) deposed in the affidavit in support of the prayers in originating summons can by themselves disclose disputed facts and hostile nature of the proceedings.” PER MOHAMMED LADAN TSAMIYA J.C.A
JUSTICES
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
DR YUSUF NAGOGO Appellant(s)
AND
1. CONGRESS FOR PROGRESSIVE CHANGE (C.P.C.)
2. SOLOMON A. EWUGA
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
MOHAMMED LADAN TSAMIYA J.C.A (Delivering the Leading Judgment): This appeal arose from the judgment of the Federal High Court, Lafia, in Nasarawa State, (herein referred to as the trial court) delivered on 28/06/2011, wherein the trial court found in favour of the two plaintiffs and against the two defendants.
The 1st and 2nd plaintiffs (herein referred to as the 1st and 2nd respondents) instituted action at the Federal High Court Nasarawa State, sitting at Lafia against 1st and 2nd defendants (herein referred to as 3rd respondent and appellant respectively). The action basically challenged the actions of the 3rd respondent (INEC) as they related to the candidature of the 2nd respondent who was the duly nominated and sponsored candidate of the 1st respondent for the Nasarawa North senatorial Election for the April, 2011 elections.
Being dissatisfied with the actions of the 3rd respondent, the 1st and 2nd respondents commenced this action by an originating summon filed on 01/04/2011 challenging the actions of the 3rd respondent in the said Federal High Court (herein referred to the trial court. Later on, with the leave of the trial court the 1st and 2nd respondents filed an amended originating summons and sought the followings declarations and reliefs:-
1.”A DECLARATION that nomination, sponsorship and substitution of candidates for an election, is the exclusive preserve of the political party concerned under the law.
2. A DECLARATION that the 1st defendant has no vires or statutory power to reject the name of any candidate sponsored by a political party for elective position or compel any political party to sponsor a particular candidate for an election.
3. A DECLARATION that the 1st defendant has no statutory power to recognize or accept as candidate the name of any person not submitted or sponsored by his political party.
4. A DECLARATION that the 2nd plaintiff having won the primaries of the 1st plaintiff pursuant to which his name has been submitted to the 1st defendant as the nominated and sponsored candidate of the 1st plaintiff for the Nasarawa North senatorial District in the National Assembly Election in the April, 2011 general election.
5. A DECLARATION that under the provisions of the Electoral Act 2011, the only way the 1st defendant can change, reject, substitute a duly sponsored/nominated candidate of a political party is through a court order.
6. AN ORDER of the Honourable court compelling/Directing the 1st Defendant to recognize and accept the 2nd plaintiffs as the (sic) for the Nasarawa North Senatorial District in the National Assembly Election in the April, 2011 general election.
7. AN ORDER of this Honourable court that the 2nd Defendant having lost in the primary election of the 1st plaintiff conducted on 15th January, 2011 and not having been sponsored by the 1st plaintiff to be its candidate in the April, 2011 general election into the Nasarawa North Senatorial District in the National Assembly Election in the April, 2011 general election.
8. AN ORDER of this Honourable court that the sponsorship/nomination of the 2nd plaintiff by the 1st having been done in accordance with the law cannot be invalidated in law.
9. AN ORDER of this Honourable Court declaring the 2nd plaintiffs as the sponsored candidate of the 1st Plaintiff for Nasarawa North senatorial District of Nasarawa State in the April, 2011 general elections.
10. AN ORDER of perpetual injunction restraining the 1st defendant, its agents, servants or privies from recognizing the 2nd defendant as the sponsored candidate of the 1st plaintiff for Nasarawa North Senatorial District for April, 2011 general elections”
The amended originating summons was supported by a 47 paragraphed affidavit with fifteen attachments marked as exhibits. A, B, C, D, E, F, G, GI, H, K, L, M, N, O. See pages 528-535 of volume 1 of the records. The appellant filed his counter affidavits to oppose the originating summons. The appellant’s counter-affidavit is of 28 paragraphs with eight attachments marked as exhibits A-H as shown on pages 739-742 of volume 11 of the records. The 3rd respondent did not file any counter affidavit but rather only filed a written address which is on pages 838 – 841 of volume 11 of the records.
On receipt of the appellants counter affidavit the 1st and 2nd respondents filed a seven paragraphed further affidavit to which 3 attachments, were annexed and marked as exhibits p, q, and r. The trial court on 28/06/2011 after painstakingly reviewed the issues involved and the evidence (documentary) gave its judgment in favour of the 1st and 2nd respondents and granted all the prayers/reliefs contained in the body of the amended originating summons. See pages 851 – 887 of volume 11 of the records.
Dissatisfied with the said judgment, the appellant appealed to this court via his Notice and Grounds of Appeal filed on 29/06/2011 which is on pages 893 – 899 of volume 11 of the records. The notice and grounds of appeal contains seven (7) grounds of appeal with their respective particulars, except ground seven (7) which is a general one.
In accordance with the rules of this court, both parties to this appeal filed and exchanged their respective briefs of arguments. The appellant’s brief of argument was filed on 29/09/2011 and on receipt of the 1st, 2nd and 3rd respondents’ brief of argument filed a reply brief of argument to the 1st and 2nd respondents’ brief of argument on 18/10/2011.
The 1st and 2nd respondents’ brief was filed on 11/10/2011 while the 3rd respondent’s brief was filed on 12/10/2011.
In his brief, the appellant formulated two issues for determination as follows:-
1. Whether an originating summons procedure is the proper procedure to adopt in the present case in view of the conflicting and hostile positions of the parties (grounds 6).
2. Whether in view of the hostile and conflicting position of the parties the learned trial judge had jurisdiction to entertain the originating summons (ground 1).
The appellant formulated no issues from grounds 2, 3 -5 and 7 and he admitted in his brief that he abandoned these grounds of appeal. These grounds are therefore struck out having been abandoned.
On their part, the 1st and 2nd respondents formulated only one issue which may be break as follows:
1. (a) whether the action is properly commenced by originating summons, and whether appellant can now challenge the mode of commencement of this action, and if so.
b. whether the action is not properly commenced by originating summons – (Ground 6).
The 3rd respondent in his brief also formulated one issue for consideration as follows:-
1. Whether, assuming but without conceding, that the parties’ affidavits were conflicting, the mere use of originating summons procedure has occasioned a mis-carriage of justice on the appellants herein.
At the hearing of this appeal learned counsel for the appellant and the respondents adopted and relied on their respective briefs. The appellant’s counsel urged this court to allow the appeal and set aside the judgment of the trial court and affirmed him as the valid candidate of the 1st respondent as the winner of the election in the elective post in dispute. The respondents urged this court to dismiss the appeal and confirmed the decision of the trial court in favour of the 1st and 2nd respondents.
Before considering the issues for determination, it is pertinent to, first, state the brief back ground of the facts which gave rise to the present appeal as contained in the record.
In preparation for the April 2011 general election and in line with the 1st respondents constitutional and other relevant statutory provisions governing the elections in Nigeria, the 1st respondent, gave notice on 07/12/2011 to all interested and qualified members wishing to participate and or contest its primary elections into various elective offices in the federation. Pursuant to that, a primary election was arranged in the Nasarawa North Senatorial District by the 1st respondent on 11/01/2011 preparatory to the nomination of its candidate in the said elective office. On the said day of 11/01/2011, primary election was only partly conducted in one local government out of the three local governments that make up the senatorial district. There was no election in Akwanga and substantial parts of Nasarawa Eggon local governments. Consequently, no result declared by the 1st respondent for the district and the said election was declared in conclusive by the National executive committee (INEC) of the 1st plaintiff upon the complaint of the party state Executives of the party. Three aspirants namely Dr Yusuf Musa Nagogo (appellant) Samuel E.
Allu and Solomon Ewuga (2nd respondent) contested the inconclusive primary election. Consequence upon the inconclusiveness of the 11/01/2011 primary election, a re-run primary election was arranged and in fact held on 15/01/2011 for the nomination of the candidate on the directive N.E.C. of the 1st plaintiffs. At the end, the 2nd respondent emerged as the winner upon which the 1st respondent submitted his name to the 3rd respondent (INEC) as the 1st respondent’s nominated and sponsored candidate for Nasarawa North senatorial District of Nasarawa state at the April, 2011 general election. The appellant’s name was never authoritatively and validly submitted to the 3rd respondent talk less of his substitution. The 1st respondent thereafter commenced campaign and presented the 2nd respondent with its flag and became the flag bearer of the 1st respondent in the Senatorial District. The 2nd respondent’s confirmation as the 1st respondents nominated and sponsored candidate of the 1st respondent in the election was submitted to the 3rd respondent as evidence by exhibits G and GI.
The 2nd respondent obtained, from the 3rd respondent, the “Expression of Interest Form’ (exhibit L) for the said elective office and “a Nomination Form” (exhibit M) which he filed and submitted them to the 3rd respondent in addition to his personal particulars form (exhibit N). Notwithstanding all these, the 3rd respondent refused/neglect to recognise the candidature of the 2nd respondent in the said elective post, let alone published his name on its website. Instead, and without the consent and knowledge of the 1st respondent, the 3rd respondent published the names of the appellant (who neither won the primary election nor nominated and sponsored by the 1st respondent) in its website. I will now proceed to consider the issues
ISSUE 1: In his submission under this issue learned counsel for the appellant submitted that where there are areas of dispute/conflict between the affidavit in support of the originating summons and the counter-affidavit, an originating summons is not the proper procedure to initiate an action. And where the trial court is faced with this situation the trial court should convert the procedure to a writ of summons and order for pleadings so that the matter be decided on the evidence adduced before it. In support of this submission a number of decided cases were relied upon as follows:-
1. National Bank of Nigeria & Anor V. Lady Ayodele Alakya & Anor. N.S.C.C. (1977 – 1978) Vol II P. 479 @ page 476 – 479.
2. Doherty V. Doherty (1967 – 1968) N.S.C.C. Vol. 5 p 237 @ 241-242.
3. Alegbe V. Oloyo (1983) N.S.C.C. Vol. 14. P. 315 @ 335.
4. Anatogu V. Anatogu (1997) 9 NWLR (pt. 519) p. 49 @ page 70 – 71.
5. University of Lagos V. Aigoro (1991) 3 NWLR (pt. 179) p. 376 @ page 383 – 4.
6. Din V. A. G. Federation (1986) 1 NWLR (PT. 17) P. 471 @ 485 – 486.
7. Udosen V. N.E.C. & 2 Ors (1997) 5 NWLR (pt. 506) p. 570 @ p. 582
8. Folabi V. Folabi (1976) Vol. 10 N.S.C.C. p. 576 @ p. 581
Learned counsel further listed the areas in which he thinks the contending parties are in hot dispute and he highlighted them, as follows.
a. Who won at the C.P.C. primary election?
b. The 2nd respondent’s candidature in C.P.C. and his membership in P.D.P.
c. Date of primary and number of primaries held.
Learned counsel finally, on this issue, submitted that it was wrong for the 1st and 2nd respondents to have instituted this action on originating summon in the circumstances and the trial court was also in error to have entertained this matter.
ISSUE 2: the issue of the appellant here is whether the trial court had jurisdiction to entertain the suit under originating summons. He submitted that since this action commenced by originating summons and that the facts of this case are controversial or contentious which cannot be ascertained without pleadings being filed, the trial court lacks jurisdiction to entertain the action, and in support of this point the cases cited on the argument on issue 1 above were also referred. He urged this court to hold that the trial court lacked jurisdiction.
In their response to the total submissions of the appellant on the two issues, learned counsel for the 1st and 2nd respondent urged this court to discountenance with the submission of the appellant challenging the mode of commencement of this action, because he did not challenge the mode in the trial court. He is raising this issue i.e. questioning/challenging the mode, for the first time before this appeal court. Learned counsel for the 1st and 2nd respondents further contended that it is too late in the day for the appellant to challenge the mode of the commencement of the action by originating summons, since he had taken fresh step in the proceedings after becoming aware of the alleged irregularity in procedure, upon filing a counter affidavit and written address in opposition to the originating summons. That the form of commencement of action does not make it incompetent but what is relevant is the substantial justice.
On the issue of jurisdiction of the trial court in the circumstance of this case, learned counsel submitted that, the trial court had jurisdiction and that, even if lack of jurisdiction as alleged, exist, it is procedural irregularity which the appellant had waived, but not substantial. The appellant waived the alleged irregularity when he filed his counter affidavit and written address and the most important waiver is his submission to the jurisdiction of the trial court without protest on his appearance for the trial.
On whether or not the claim was properly commenced by the originating summons, learned counsel for the 1st and 2nd respondents contended that their claim at the trial court concerned the interpretation of section 87 of the Electoral Act 2010 (as amended), as well as the 1st respondents constitution and the Electoral Act 2010 (as amended). In short he was claiming his interest to contest the election under these enactments.
On conflicts of the affidavits, learned counsel submitted that the facts in the two respective affidavits are not in conflict warranting ordering for pleading. He further contended that even if these facts in the two different affidavits are in conflict there is enough documentary evidence that assisted the trial court in resolving the issues in favour of the 1st and 2nd respondents and he listed the documentary evidence as Exhibits E.C.D.M.L. and K.
He also submitted that it is not only by calling oral evidence that conflicts in affidavit evidence may be resolved but such conflict could be resolved by reference to documents attached to the affidavits.
Finally, learned counsel for the 1st and 2nd respondents, urged this court to dismiss the appeal and confirm the judgment of the trial court.
The determination and the reliefs sought by the 1st and 2nd respondents in this suit which gives rise to this appeal have been comprehensively set out earlier on in this judgment. I have also stated the brief facts of the case for the 1st and 2nd respondents in this suit, which can be found on pages 528-535 of volume 1 of the records, particularly the reliefs sought as shown at pages 525 – 526 of same.
In the instant case as said above, the bone of contention is on the propriety of originating summons as the mode of commencement of this suit, i.e. suit No: FHC/LF/CS/17/2011, at the trial court. Can an action be commenced in the Federal High court by way of originating summons?
By order 3 Rules 6 and 7 of the Federal High Court (civil procedure) Rules, 2009, contemplates actions commenced by origination summons. It provides that proceeding may begin by originating summons for the determination of any question of construction arising under the instrument, a written law, (such as constitution) will, or deed it says:
Order 3 Rules 6 and 7:
“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 right of the person interested 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 enactment may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed.”
From the originating summons and documentary evidence attached to the affidavit in support that is so far as the 1st and 2nd respondents are concerned, the re-scheduled primary election of the 1st respondent to nominate which of its members should be its candidate in the elective office in dispute, was won by the 2nd respondent and all what they require the trial court to do was to determine whether the 3rd respondent under the provisions of the constitution, (as amended) or the electoral Act 2010 (as amended), can change, reject or substitute a duly nominated and sponsored candidate of the 1st respondent without a court order. Therefore, I have no doubt in my mind that, applying the law to the facts of this suit, the instant procedure by way of originating summons avail the 1st and 2nd respondents of a proper way of initiating this suit in seeking a quick and ready resolution of their grievances as per their claim. The substance of the case of the 1st and 2nd respondent is that, since the name of the 2nd respondent was submitted as the nominated and sponsored candidate of the 1st respondent in compliance with the requirements of the Electoral Act (as amended) INEC who is responsible for publishing the names of political parties nominated and sponsored candidates for election cannot reject/nullify or substitute same without court’s order, an originating summons, however, would suffice to establish their, would suffice to establish their claim. Their suit is without prejudice to the defences by the appellant. It is my view therefore that from the perspective of the 1st and 2nd respondents an originating summons in appropriate and sufficient to ventilate their grievances, Moreover neither the appellant nor the 3rd respondents effectively challenge the 1st, 2nd and respondents affidavit in support still on propriety or other wise of the originating summons, learned counsel for the appellant contended that the procedure followed was wrong. On the other hand, learned counsel for the 1st and 2nd respondent submitted that the appellant did not raise this issue of commencing this action by way of originating summons at the trial court. The appellant is raising this issue for the first in this Court and that is too late in the day to challenge the mode of recommencement of the action leading to this appeal at this stage.
MODE OF COMMENCEMENT OF ACTION
I have gone through the record and what I observed is that, the parties, i.e. those 1st and 2nd respondents, as against the appellant and the 3rd respondent have filed, with the exception of the 3rd respondent, their respective affidavits and counter-affidavit without first raising any challenge to the procedure of conducting this case by an originating summons. Upon non complain of wrong procedure, if at all exists, the appellant should not be heard to complain as he is deemed to have waived the irregularity he alleged. The instance challenge of the procedure of commencing this suit by originating summons, therefore, is a fresh issue as it has not been taken in the trial court. No leave has been sought and obtained to raise at this stage of appeal. The challenge on the process under originating summons in my view has not been raised formally as there is no formal motion to raise and treat this issue in its proper con.
I must say that having fought this matter this far, i.e. on the instant form of action to this state and in this court, amounts to acquiescing in the propriety of the procedure. Order 51, rule 2(1) and (2) of the Federal High Court (Civil Procedure) Rules 2009, provides that:
Order 51 Rules 2(1) & (2)
“1. An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order shall not be allowed unless it is made with in areas enable time and before the party applying has taken any fresh step in the proceedings.
2. Any application under sub-rule (1) of this rule may be made by summons or Motion on Notice, and the grounds of objection shall be stated in the summons or Motion on Notice.
From the record, I observed that the appellant, notwithstanding the adoption of this procedure which to him is wrong, filed his counter-affidavit accompanied by his written address all in opposition to the originating summons.
The appellant was represented by counsel in the trial court and he failed to challenge the procedure adopted in the trial court but instead allowed the trial to proceed to conclusion. The appellant having lost in the trial court, therefore, decided to complain that the mode of commencement of the action was wrong. It is true that a party cannot take advantage of the irregularity which has acquiesced to in Adebayo & Ors. V. Shonowo & Ors. (1969) 1 NWLR 176, an irregular procedure was followed in commencing an action. The Supreme Court (per Coker, J.S.C. as he then was) observed, at page 90 of the report, thus:
“even if the procedure adopted by the applicant Adebayo were wrong, we think that it is now late in the day for the directors to complain about it. They failed to challenge the correctness of the procedure at the commencement of the proceedings or on their entry into the case.”
After all, originating summons is one of the four methods/procedures for initiating an action in a court provided by the Rules of High court. In the circumstances the adoptions of a wrong procedure/ if at all exist would be no more than an irregularity, and would not render the entire proceedings an nullity as sought by the appellant.
Based on what I have stated above, it could safely be concluded, and I hold that the action, that is suit No.FHC/LC/CS/17/2011 was properly commenced and is competent having been initiated by originating summons.
The appellant’s learned counsel contended in the appellant’s brief of argument that there was a series of disputes as to facts averred in the affidavit in support of the 1st and 2nd respondents’ amended originating summons. Reference was made to:
1. Issue of who won the Primary.
2. Issue on date of primary and number of primaries, and
3. Issue of 2nd respondent’s candidature and membership of P.D.P.
Learned counsel for the appellant made the above reference which in his opinion is a pointer to the fact that the affidavit of the 1st and 2nd respondents on the one part and that of the appellant on the other part involve facts/issues that are seriously in dispute/conflict. This according to him is indicative that the 1st and 2nd respondents’ action was wrongly initiated by the method of originating summons.
The law is trite that where the facts in an affidavit and counter-affidavit are in conflict substantially, it becomes imperative that in such a situation oral evidence shall be required and given to resolve the conflict. See C.U. Mbaji & Sons Ltd. V. A.I. Ahunanya (2000) 8 NWLR (Pt. 669) 498.
In deciding whether or not contents of the affidavit in support are in dispute/conflict with that of the counter-affidavit, Tobi, J.S.C. (as he then was) stated in L.S.P.D.C. V. Adoled Stamm International (Nig) Ltd. (2005) 2 NWLR (Pt. 910) 63 @ 503:-
For conflict in affidavit to receive the attention of the court, the conflict must really affect the live issues involved in the case. The conflict must be tangible not intangible; it must be substantial and fundamental to the live issues in the case, where conflicts are peripheral, cosmative, in articulate or mere force orchestrated by the party, a court of law will not order that oral evidence be led to resolve or reconcile the conflicts”. Invited comma.”
I have meticulously perused the records and examined both the 1st and 2nd respondents affidavit in support of the amended originating summons on one hand and on the other hand the counter-affidavit of the appellant. I am unable to see any dispute/conflicts substantially, of issues of fact, rather, that the 1st and 2nd respondents sole or principal question earmarked for determination in this suit is one of construction of a written law, i.e. whether the 3rd respondent had power to annul/rescind or substitute duly the nomination and sponsorship of the 1st respondent’s candidate into the elective office in dispute and puts the appellant, who was not nominated and sponsored by the 1st respondent for the office. What was required of the trial to do was to determine whether the 3rd respondent under the provisions of the Electoral Act, Constitution or any other enactment, can change/substitute or reject a duly nominated and sponsored candidate of a political party without a court order.
None of the paragraphs of the appellant’s counter affidavit contradicts or comes in conflict with the documentary evidence because the appellant in countering the named exhibits, averred that, “they were fraudulently procured concocted and manufactured by the deponent thereof to mislead the trial court.” This is a general statement which, in my view, does not specifically counter the said exhibits. Paragraphs 5, 7, and 8 of the appellant’s counter-affidavit are also general statements which in my view, do not specifically counter those exhibits, paragraphs 9, 10, and 13 of the appellants counter-affidavit, however, were to the fact that 2nd respondent did not resign his P.D.P. membership at the material time, but exhibit J was tendered, and in my view, it was sufficient material to deal with the issue of whether the 2nd respondent had resigned his P.D.P. membership.
As the above mentioned exhibits have not been challenged they constituted admissible and reliable evidence. It is the effect of these documents and exhibits and failure on the part of the 3rd respondent on the matter in controversy, i.e., the rejection/substitution of the 2nd respondent that the trial court is called to adjudicate upon. By contending that the action should have been commenced by writs as there are apparently conflicting facts the appellant is missing the point.
I wish to point out that it is not the filing of counter affidavit per se that makes the claim hostile. See Etim vs. Obot (2010) 12 NWLR (Pt. 1207) 108 @ 155 p. G – H where this court decided that:-
“It is not the filing of the counter-affidavit to oppose the claim in the originating summons that makes such proceedings to be contentious or to result in substantial disputed facts. The nature of the claim(s) and fact(s) deposed in the affidavit in support of the prayers in originating summons can by themselves disclose disputed facts and hostile nature of the proceedings.”
Assuming I am wrong in my conclusion, and that there are facts that are in conflict, I am to say that there is enough documentary evidence that assisted the trial court in resolving the issues in favour of the 1st and 2nd respondents, e.g.
1. On issue of who won the primary election of 15/1/2011, exhibit ‘E’ is the result which was attached to the amended originating summons and it proves clearly it emanated from the 1st respondent, and that the 2nd respondent won the said primary election. See pages 596-63 4 of volume I of the records.
2. On issue of primaries and their numbers. Exhibit ‘E’ aforesaid confirmed the date of the primaries, which exhibit ‘C’, is the request for a date of the said re-run primary election. See pages 595 of volume I of the records. This exhibit clearly shows how many primary elections.
3. On 2nd respondent’s candidature in C.P.C. (1st respondent) and his membership in P.D.P., exhibit I is the membership of 2nd respondent as a member of the 1st respondent. See page 639 of volume I. By this exhibit I it is proved that 2nd respondent is a full pledged member of the 1st respondent.
Having said the above conclusion of mine, the next question is whether the trial court had jurisdiction to entertain the originating summons in view of the hostile and conflicting position of the parties.
The learned counsel for the appellant submitted on behalf of the appellant that the trial lacks jurisdiction to entertain it. And that failure of the trial court to order pleadings to resolve the disputed issues by oral evidence has robbed the trial court, of its jurisdiction.
In response, learned counsel for 1st and 2nd respondents contented, on their behalf, that the issue of jurisdiction raised by the appellant, if at all it exists, it procedural and not substantial being it procedural, the appellant had waived it by his conduct in the proceedings’ have already stated earlier in this judgment there were no conflicting position of parties in their respective affidavit.
On the issue of jurisdiction raised by the appellant it is to be noticed that there are two distinct issues of jurisdiction, namely jurisdiction as a matter of substantive law and jurisdiction as a matter of procedural law. The distinction is between is that, jurisdiction as a matter of substantive law cannot be waived by a litigant while jurisdiction as a matter of procedural law can be waived by a litigant.
The issue of jurisdiction raised here by the appellant is that of jurisdiction on procedural law, and had filed counter-affidavit which was accompanied by a written address and he submitted himself to the jurisdiction of court.
These acts clearly amount to taking steps in the proceedings and entitled the 1st and 2nd respondents to understand these steps as acts of waiver of the alleged wrong procedure which to him robbed the trial court its jurisdiction.
It is apparent from the totality of the records before us that the appellant had not shown that he had suffered any miscarriage of Justice in the circumstance. The trial Court therefore had not been robbed of its jurisdiction in the circumstances, and it has jurisdiction and I so hold.
In the final result and for all the reasons I have given above, I find no merit in this appeal and therefore dismiss same. The decision of the trial court contained in the judgment delivered on 28/06/2011 in respect of the 1st and 2nd respondent’s suit No: FHC/LF/CS/17/2011 is hereby affirmed. Parties to bear their respective costs.
A. B. GUMEL, J.C.A: I have had the privilege of reading before now the lead judgment of my learned brother Tsamiya, JCA. I agree with all his reasonings and conclusions, I too dismiss this appeal and also make no order for costs.
UCHECHUKWU ONYEMENAM J.C.A: I have had the privilege of reading in draft the judgment delivered by my learned brother, Mohammed Ladan Tsamiya JCA.
I agree with reasoning and conclusion given above accordingly, I also find no merit in this appeal. I therefore dismiss same and affirm the judgment of the trial Court delivered on 28/06/2011 in suit No: FHC/LF/CS/17/2011. I abide by the order as to costs.
Appearances
MR M.M. NURUDEENFor Appellant
AND
CHIEF S.A. AYIWULU WITH EDWIN ANIKWEM, Z.Z. ALLUMAGA, M.O. ABUBAKAR, MISS C.C. AGU AND OVEY JOHN
MR I. M. DIKKOFor Respondent
