EZE LOUIS EMEKA v. UDEKIGBO CHIBUZOR INNOCENT & ORS
In The Court of Appeal of Nigeria
On Monday, the 3rd day of June, 2019
CAUSE OF ACTION: DEFINITION AND INGREDIENTS
A cause of action is the wrongful act of the defendant(s) that constitutes a breach of a person?s right and which has caused him to suffer some damage and a cause of action is said to have accrued when all the events or actions or every fact which entitles a party to seek redress against the other party in Court have occurred or is complete. See DANTATA & ANOR V. MOHAMMED (2000) LPELR-925 (SC) AT 26-27 (E-D). In IYEKE V. P.T.I. (2019) 2 NWLR (PT.1656) 217 AT 238-239 (F-A) the Supreme Court explained what constitutes a cause of action as follows:
From the authorities on the subject, cause of action means-
i. A cause of complaint;
ii. A civil right or obligation for determination by a Court of law;
iii. A dispute in respect of which a Court of law is entitled to invoke its judicial powers to determine;
iv. Consequent damage;
v. Every fact which would be necessary for the plaintiff to prove, if traversed in order to support his right to the judgment of the Court. It does not comprise every piece of evidence that is necessary to be proved;
vi. All those things necessary to give a right of action whether they are to be done by the plaintiff or third person; and
vii. It is a factual situation, which enables one person to obtain a remedy from another in Court in respect of injury.
SEE also A-G. FED. V. ANPP (2003) 12 SCNJ 67 (2003) 18 NWLR (PT.851) 182. In COOKEY V. FOMBO (2005) 15 NWLR (PT.947) 182 at 202 (E-F) the Supreme Court per Edozie, JSC, held that:
PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
PRACTICE AND PROCEDURE: METHOD OF COMMENCING ACTIONS: WHEN ORIGINATING SUMMONS SHOULD BE USED UNDER THE HIGH COURT (CIVIL PROCEDURE) RULES , 2006 OF ANAMBRA STATE
Order 3 Rules 5, 6 and 7 of the High Court (Civil Procedure) Rules, 2006 of Anambra State provides that:
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.
Construction of Enactment
6. Any person claiming any legal or equitable right in a case where the determination of the question whether he 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.
Discretion of the Judge
7. A Judge shall not be bound to determine any such question of construction if in his opinion it ought not to be determined on originating summons but may make any such orders as he deems fit.?
It is settled by a plethora of authorities that originating summons should be used in commencing a suit only when facts are not seriously or likely to be in dispute. Where facts are in dispute and the dispute cannot be resolved by any document before the Court, originating summons is not a proper mode for commencing such action. The facts in dispute must be substantial or material to the proper and just determination of the issue in dispute and not just an imaginary or fabricated dispute on facts which have no bearing with the issue in dispute. The law is settled that even where facts in dispute are substantial and material to the issue in dispute, if the dispute can be resolved by a consideration of the documents before the Court, an originating summons will be appropriate for commencement of such action. See ECOBANK V. BUKAS KASMAL INT.L LTD & ORS (2017) LPELR- 43544 (CA) AT 76-85 (E-C). AKANMODE V. F.B.N (2018) LPELR-44456 (CA) AT 8-11 (E-D). INAKOJU & ORS V. ADELEKE & ORS (2007) LEPLR-1510 (SC) AT 28-30 (D-C). OSSAI V. WAKWAH & ORS (2006) LPELR-2813 (SC) AT 16-18 (F-C). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
EZE LOUIS EMEKA Appellant(s)
1. UDEKIGBO CHIBUZOR INNOCENT
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL
COMMISSION (INEC) Respondent(s)
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): The appellant and 1st respondent are members of the 2nd respondent (PDP). All the parties agreed that a primary election was conducted by the 2nd respondent on 4/10/2018 to elect its candidate in the Anambra State House of Assembly, Ihiala 1 Constituency 2019 general election. The appellant and 1st respondent participated in the primary election. According to the 1st respondent, he won the majority of the votes cast at the election and was declared the winner. However, his name was not forwarded to the 3rd respondent as mandated by Section 87 (4) (c) (ii) of the Electoral Act. Instead the appellant?s name was forwarded to the 3rd respondent. He instituted an action at the Anambra State High Court by originating summons wherein he presented the following questions for determination:
1. Whether having regard to part ii paragraph 11(ii) of Peoples Democratic Party Guidelines for Primary Elections, 2018 (As Amended) the 1st defendant is not obliged to submit the name of the plaintiff to the 2nd defendant as its lawfully nominated candidate for the State House of Assembly Ihiala I State Constituency?
2. Whether the 2nd defendant is not obliged to receive the name of the plaintiff as a candidate of the 1st defendant who pulled the highest number of valid and lawful votes cast at the State House of Assembly Ihiala I State Constituency primary election.
3. Whether having regards to the part II paragraph II (ii), part VI paragraph 49 of Peoples Democratic Party
4. Electoral Guidelines for Primary Elections and Sections 33 and 87 (4) & (9) of the Electoral Act 2010 (As Amended) can the 1st defendant substitute the name of the plaintiff with that of the third defendant as his candidate for the State House of Assembly Ihaiala I State Constituency Anambra State having not resigned/withdrew or died.
5. Whether the 2nd defendant after having issued Form CF 001 and Form E.C.48 (iii) to the plaintiff and that form having being completed and returned to the 1st defendant, can the 1st defendant substitute the name of the plaintiff for the name of the 3rd defendant or any other name as the candidate of the 1st defendant in the State House of Assembly Ihiala I State Constituency Anambra State having not resigned/withdrew or died?
6. Is the 2nd defendant not under obligation to revert any substitution made or any other name that is not the name of the plaintiff?
RELIEFS SOUGHT FROM THE HONOURABLE COURT:
A. A declaration that the plaintiff is the