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MACFOY & ORS v. CHOLA & ORS (2022)

MACFOY & ORS v. CHOLA & ORS

(2022)LCN/17042(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, February 17, 2022

CA/ABJ/CV/03/2022

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Between

1. DR. TONY MACFOY 2. BARR AUWALU ABDULLAHI 3. USMAN MUSA KAITA 4. ADEBAYO IYANIWURA (For Themselves & On Behalf Of The APC Local Government Congress Committee Of Kano State) APPELANT(S)

And

MUSA MUHAMMAD CHOLA & 1325 ORS RESPONDENT(S)

 

RATIO

THE DEFINITION OF ORIGINATING SUMMONS

Originating summons is a method of commencing a suit on facts and claims which do not involve substantial disputes, where the main point in issue is one on construction and interpretation of document or statute or one of pure law. It is a method reserved for issues involving short questions of construction and not matters of substantial controversy. It is thus one of the recognized methods under the various High Court Rules in Nigeria. The High Court of the Federal Capital Territory (Civil Procedure) Rules 2018 also makes provisions for commencing a suit by Originating Summons in its Order 2 Rule 3 (1), (2) and (3) thus:
“(1) 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.
2. 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.
3. The Court shall not be bound to determine any such question of construction if in its opinion it ought not to be determined on originating summons but may make any such orders as it deems fit.”
The underlying aim of originating summons methods and procedure is simplicity and case in the conduct of proceedings on issues or facts which are not materially in dispute. Whether there exist substantial or simple disputes in a given suit is a question that can only be answered by the character of the affidavit facts and exhibits attached to those affidavits. It is not by the numbers of pages of the affidavits or the volumes of exhibits attached but by the constitution of the main facts and evidence.
PER GAFAI, JC.A.

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

In my humble view, the question of whether or not the Respondents’ suit is justiciable is, as important as the question is, secondary to the question of whether or not the trial Court in the first place had jurisdiction to entertain the suit. Jurisdiction of a Court is the lifeline of any suit before it. In the context of this appeal, it is territorial jurisdiction in particular that seems to be the dominant complaint in the manner argued under the Appellants’ first issue for determination and as particularized under grounds 2 to 6 of their Notice of Appeal as well as in the manner argued also for the Respondents under a part of their first issue for determination. As its phrase denotes, territorial jurisdiction refers to or implies a certain geographical area within which the power and authority of a Court can be exercised outside which the Court lacks the vires to act. Jurisdiction, whether territorial or general, is statutorily conferred on a Court by the law or Act establishing it. See Edo Cement Co. Ltd & Ors vs. Atta (supra); Idemudia vs. Igbinedion University & Ors (2015) LPELR – 24514(CA). PER GAFAI, JC.A

BATURE ISAH GAFAI, J.C.A. (Delivering the Leading Judgment): This appeal questions the judgment of the High Court of the Federal Capital Territory Abuja coram Mu’azu J. delivered on the 17th of December, 2021 by which the learned trial Judge entered judgment in favour of the 1st to the 1320th Plaintiffs now Respondents against the Defendants now Appellants in this Appeal.

The Respondents had approached the trial Court by Originating Summons seeking for the following orders:
“1. A declaration that the 1st-5th Defendants’ decision and or action or proposal of 17th September, 2021 at the APC Headquarters in Abuja not to recognize the Claimants as the duly, validly, properly, authentically and democratically elected Local Government Area Executive Committee for the 44 Local Government Area Council of Kano State comprising of:
a. 27 erected Local Government Executive Committee Council/ Areas in Kano State each comprising o:
i. 23 Members
ii. 4 Ex-officio members elected by the congress and
b. 3 delegates to the National Convention of the Defendant party at the Local Government Congress Election conducted by the 1st to 9th Defendants and supervised by the 10th Defendant on the 4th September, 2021 is not valid, proper and in-line with the government laws.
2. Declaration that the 1st Defendant’s summary result sheets showing the Plaintiff as:
a. 27 elected Local Government Executive Committee Council/Areas in Kano State each comprising of:
i. 23 Members
ii. 4 Ex-officio members elected by the congress and
b. 3 delegates to the National Convention is the valid, subsisting authentic and democratic result of the various Local Government Area Congress Election in Kano State to be adopted, recognize and relied upon by the 1st Defendant in Abuja.
3. Directing the Defendants to adopt, recognize and rely on the summary result sheet consisting of the Claimants as the only valid, authentic and duly elected Local Government Executive Committee Members and Delegates for the 44 Local Government Areas of Kano State contained in the report submitted at the 1st Defendant National Headquarters in FCT, Abuja.
4. Nullifying, voiding and or setting aside any other list(s) of any other report/directives given by the Defendants on 17th September, 2021 or any other date, other than the valid, proper and authentic summary result sheets for Local Government Area Congress submitted to the 1st – 5th Defendants by the 6th-9th Defendants on the 13th September, 2021.
5. Declaration that consequently only the authentic list of the 17908 winners of the ward congresses election (being the authentic ward congress executive and delegate) as contained in the Report dated 2nd August, 2021 but submitted to the 1st & 10th Defendant on the 6th and 26th August, 2021 respectively and the authentic list of 44 Local Government executive committees covered by a report dated 6th September, 2021 but submitted to the 1st & 10th Defendants on the 13th & 9th September, 2021 respectively, are authentic party officials to vote at forthcoming 16th October, 2021 State Party Congress elections in the State and cannot be disenfranchised from voting at the forthcoming 1st Defendant’s State Congress elections.
6. An order of perpetual injunction restraining the Defendants from receiving, accepting and or acting or purporting to act on, rely on or approving any other list or purported list of Local Government Area Executive Committee Members emanating from any other Committee, persons or group of person other than the duly and validly elected Local Government Area Executive Committee and Delegates to the National Convention for each and all the 44 Local Government Areas of Kano State which comprises:
i. 23 Members
ii. 4 Ex-officio Member selected by the Congress
iii. 3 delegates to the National Convention.”

The Respondents rooted their entitlement to these reliefs upon five questions they submitted for the trial Court’s determination which, as is the settled practice, are all naturally tailored directly in the reliefs sought. The record shows a heated contest of the suit by the parties. At the end of it all, the learned trial Judge found for and entered judgment in favour of the Respondents as follows:
“1. Consequently, I hereby find and enter judgment in favour of the Plaintiffs as follows:
A declaration that the 1st – 5th Defendants decision and or action or proposal of 17th September, 2021, at the APC- Headquarters in Abuja not to recognize the Claimants as the dully, validly, properly, authentically and democratically elected Local Government Area Executive/Area Council of Kano State comprising of:
a. 27 elected Local Government Executive Committee Members for each of the 44 Local Government Council/ Areas in Kano State each comprising of:
i. 23 Members
ii. 4 Ex-officio members elected by the congress and
b. 3 delegates to the National Convention of the 1st Defendant party at the Local Government Congress Election conducted by the 1st to 9th Defendants and supervised by the 10th Defendant on the 4th September, 2021 is not valid, proper and in-line with the governing laws is hereby granted.
2. Declaration that the 1st Defendant’s summary result sheets showing the Plaintiff as:
a. 27 elected Local Government Executive Committee Members for each of the 44 Local Government Council/ Areas in Kano State each comprising of:
i. 23 Members
ii. 4 Ex-officio members elected by the congress and
b. 3 delegates to the National Convention is the valid, subsisting authentic and democratic result of the various Local Government Area Congress Election in Kano State to be adopted, recognize and relied upon by the 1st Defendant in Abuja is hereby granted.
3. Order is hereby made directing the Defendants to adopt, recognize and rely on the summary result sheet consisting of the Claimants as the only valid, authentic and duly elected Local Government Executive Committee Members and Delegates for the 44 Local Government Areas of Kano State contained in the report submitted at the 1st Defendant National Headquarters in FCT, Abuja.
4. Order is hereby granted nullifying, voiding and or setting aside any other list(s) of any other report/directives given by the Defendants on 17th September, 2021 or any other date, other than the valid, proper and authentic summary result sheets for Local Government Area Congress submitted to the 1st – 5th September, 2021.
5. Declaration that consequentially, only the authentic list of the 17,908 winners of the ward congresses elections (being the authentic ward congress executives and Delegates) as contained in the report dated 2nd August, 2021 but submitting to the 1st & 10th Defendant on the 6th and 26th August, 2021 respectively and the authentic list of 44 Local Government executive committee covered by a report dated 6th September, 2021 but submitted to the 1st & 10th Defendants on the 13th & 9th September, 2021 respectively, are authentic party official to vote at forthcoming 16th October, 2021 State Party Congress elections in the State and cannot be disenfranchised from voting at the forthcoming 1st Defendant’s State Congress elections is hereby granted.
6. An order of perpetual injunction restraining the Defendants from receiving, accepting and or acting or purporting to act on, rely on or approving any other list or purported list of Local Government Area Executive Committee Members emanating from any other Committee, person or group of person other than the duly validly elected Local Government Area Executive Committee and Delegates to the National Convention for each and all the 44 Local Government Area of Kano State which comprises:
i. 23 Members
ii. 4 Ex-officio members elected by the congress and
b. 3 delegates to the National Convention.”
See pages 5970 to 5794 of the Record (vol. 7).

The Appellants are aggrieved by this judgment and have rushed to this Court vide their Notice of Appeal filed on the 20th of December, 2021, upon eighteen grounds thus:
“GROUND 1
The learned Judge erred in law which error occasioned a miscarriage of justice when he heard and determined the 1st – 1,320th Respondents’ suit when he had no jurisdiction to do so due to the fact that 1st – 1,320th Respondents’ suit was filed outside the expiration of the 14 days. Constitutionally stipulated period for filing pre-election matters, thereby making the 1st – 1,320th Respondents’ statute barred, null and void ab initio by virtue of the provision of Section 2 of the Fourth Alteration (No. 21) Act, 2017, now Section 285(9) and (14) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
GROUND 2
The learned trial Judge erred in law which error occasioned a miscarriage of justice when he described the present matter as a pre-election matter and wrongly interpreted and applied the Section 87(9) of the Electoral Act, to the facts and circumstances of this case.
GROUND 3
The lower Court erred in law which error occasioned a miscarriage of justice to the Appellants when it refused to follow the Supreme Court’s decision in the case of APC v. MOSES (2021) ALL NWLR (Pt. 12) P. 495 and EYITAYO JEGEDE v. INEC & 3 ORS (2021) LPELR-55481(SC), in line with the principles of stare decisis, and refuse to hold that the subject matter of the 1st – 1,320th Respondents (Plaintiffs) suit which centered on the APC Local Government Congress held in Kano State, was an internal affair of a political party, but rather misapplied the general provisions of Sections 6(6)(a) and 255 of the Constitution of the Federal Republic Nigeria, 1999 (as amended) and Section 85 (3) of the Electoral Act, 2010, (as amended) in holding that it had jurisdiction to determine the 1st – 1,320th Respondents’ suit.
GROUND 4
The lower Court erred in law which error has occasioned a miscarriage of justice to the Appellants when it held that it had the requisite territorial jurisdiction to entertain the 1st – 1,320th Respondents’ suit which is centered on the conduct and outcome of the APC Local Government Congresses in 44 Local Government Area of Kano State, which subject matter is an intra-party issue.
GROUND 5
The lower Court erred in law which error has occasioned a miscarriage of justice to the appellants when it held that it had requisite jurisdiction to hear the 1st – 1,320th Respondents’ suit notwithstanding the fact that the said suit is not justiciable and does not disclose any reasonable cause of action against the Appellant.
GROUND 6
The lower Court erred in law which error has occasioned a miscarriage of justice to the Appellants when it held that the 1st – 1,320th Respondents had the requisite locus standi to initiate the suit before the lower Court.
GROUND 7
The lower Court erred in law which error has occasioned a miscarriage of justice to the Appellants when it held that the 1st – 1,320th Respondents’ suit was rightly commenced via in originating summons even in the face of the copiously conflicting and contested affidavit and documentary evidence before it, requiring plenary trial and the calling of oral evidence to explain the numerous conflicting documentary evidence before it.
GROUND 8
The lower Court erred in law which error has occasioned a miscarriage of justice to the Appellants when it entered judgment in favour of the 1st – 1,320th Respondents without proper evaluation of the documentary evidence adduced by the Appellants in Exhibits MND1 – MND 48 as well as the affidavit evidence adduced in support of same.
GROUND 9
The lower Court erred in law which error has occasioned a miscarriage of justice to the Appellants when it failed to properly evaluate and thus wrongly upheld Exhibit F which document on its face proclaimed itself a lie and as such became manifestly false and unreliable.
GROUND 10
The lower Court erred in law which error has occasioned a miscarriage of justice to the Appellants when it held that the Affidavit in support of the 1st – 1,320th Respondents’ originating summons was competent notwithstanding the fact that same was made in non-compliance with the provisions of Section 115(4) of the Evidence Act, 2011, which valid ground for dismissing the 1st – 1,320th the Respondents’ suit.
GROUND 11
The lower Court erred in law which error has occasioned a miscarriage of justice to the Appellants when it failed to make a pronouncement on the non-joinder of the newly the elected executives of the 44 Local Government of Kano State as necessary parties to the 1st – 1,320th the Respondents’ suit before the lower Court which breached their right to fair hearing to enshrined in the provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as a jurisdictional ground for dismissing the 1st – 1,320th Respondents’ suit.
GROUND 12
The lower Court erred in law which error has occasioned a miscarriage of justice to the Appellants when it held that the Appellant did not adduce evidence, to establish that consensus arrangement was adopted and applied at the Local Government Congress of the 1,320th Respondents, All Progressives Congress, in Kano State.
GROUND 13
The lower Court erred in law which error has occasioned a miscarriage of justice to the Appellants when it entered judgment in favour of the 1st – 1,320th Respondent when they never established beyond reasonable doubt, their criminal allegations that the INEC independent reports and results adduced in evidence by the Appellant as Exhibits MND3-MND46 were fake and forged.
GROUND 14
The lower Court erred in law which error has occasioned a miscarriage of justice to the Appellants when it entered judgment in favour of the 1st – 1,320th Respondents and held that they had proved their case on a balance of probabilities and granted them all the declaratory injunction and executory reliefs against the Appellants.
GROUND 15
The lower Court erred in law which error has occasioned a miscarriage of justice to the Appellants when it entered judgment in favour of the 1st – 1,320th Respondents on the sole basis that the report in Exhibit F submitted to APC was received by them, notwithstanding the fact that the Appellants’ Report in Exhibit G was the first in time as well as duly received by APC.
GROUND 16
The lower Court erred in law which has error a miscarriage of justice to the Appellants when he apparently discountenance the Appellants’ Counter- Affidavit in opposition to the 1st – 1,320th Respondents’ Originating Summons to the basis that the Appellants’ deponent was not a competent witness.
GROUND 17
The learned trial Judge erred in law which error occasioned a miscarriage of justice when he heard and determined the 1st – 1,320th Respondents suit when he had no jurisdiction to do so due to the fact that the 1st – 1,320th Respondents’ suit amounted to an abuse of Court process by virtue of multiplicity of action in view of the judgment of the lower Court (Coram Honourable Justice H. Mu’azu) in the matter in suit no. CV/2020/2021 MUTTAKA BALA SULAIMAN & 17,907 OTHERS V. ALL PROGRESSIVES CONGRESS & 9 Ors, which was delivered on 30th November, 2021.
GROUND 18
The judgment of the lower Court is against the weight of evidence.”
See pages 5813 of the Record (vol. 7)

The Record of Appeal was transmitted to this Court on the 5th and the Appellants’ Brief of Argument filed on the 7th of January, 2022. Except, the All Progressives Congress, H. E. Mai Mola Buni, Senator John James Akpanudoedehe, Hon. Olayide Adewale Akinremi, Senator Abba Ali and the Independent National Electoral Commission listed as the 1321st – 1326th Respondents who saw no reason to contest this appeal, the brief of the 1st to 1320th Respondents was filed on the 18th of January, 2022 along with a Notice of Preliminary Objection, in consequence of which the Appellants caused to be filed their reply brief on the 20th of January, 2022. At the hearing of the appeal, the lead learned senior counsel for the Appellants Sir Steve Zakari Adehi SAN and his learned friend for the 1st – 1320th Respondents Nureini Jimoh SAN also leading others adopted their respective Briefs of Argument, added a few oral supplementary submissions and urged this Court to proceed accordingly.

For the Appellants, three issues for determination have been submitted thus:
“1. Whether the trial Court had jurisdiction to entertain and determine the 1st – 1,320th Respondents’ Originating Summons as constituted before the trial Court (Distilled from grounds 2, 3, 4, 5 and 6 of the Notice of Appeal)
2. Whether having regards to the facts and evidence on record, the 1st-1,320th Respondents’ suit was appropriately commenced by way of an Originating Summons (Distilled from ground 7 of the Notice of Appeal)
3. Whether having regards to the evidence on record, the lower Court was right in entering judgment in favour of the 1st – 1,320th Respondents and granting all the reliefs sought in the Originating Summons (Distilled from grounds 9 and 18 of the Notice of Appeal).”

For the Respondents, two issues have been formulated thus:
“i. Whether the Appellants’ objections were not rightly dismissed? (Grounds 2, 3, 4, 5, 6 & 7)
ii. Whether the findings and orders of the trial Court in this suit are not in accordance with facts/evidence before the Court and or without basis (Grounds 9 & 18)”

As mentioned earlier however, the Respondents had also filed a Notice of Preliminary Objection.

The Preliminary Objection is predicated upon seven grounds by which altogether these Respondents challenged the competence of this appeal as well as the jurisdiction of this Court to entertain it. I note the seven paragraph supporting affidavit filed with the Notice of Preliminary Objection. More importantly however, the listed seven Grounds of the Preliminary Objection have all been comprehensively argued in their Brief of Argument, more particularly at its pages 4 to 10, ditto the Appellants’ at pages 1 to 10 of their reply brief.

Before delving into the Respondents’ Preliminary Objection, this Court will first attend to yet another subtle Preliminary Objection to the Respondents’ Preliminary Objection itself, as raised by the Appellants summarily at page 1 of their reply brief thus:
“The 1st – 1320th Respondents have attached an “Affidavit in Support of Motion” to the said Notice of Preliminary Objection dated the 18th day of January, 2022 and filed on the same day. We humbly urge this Honourable Court to strike out the said “Affidavit in Support of Motion” attached to the 1st-1,320th Respondents’ Notice of Preliminary Objection dated and filed on the day 18th day of January, 2022 as the said process has no place in this proceedings.”

That is all. With respects, it seems either the learned senior counsel is uncertain that the Respondents’ supporting affidavit “has no place in this Proceedings”, or is indifferent about the purport of his subtle objection. Sadly however, the learned senior counsel for the Respondents also did not find it worthy of a single response in his oral arguments at the hearing of this appeal. I have accorded due consideration to the Appellants’ objection viz-a-viz the Respondents’ listed seven Grounds of Preliminary Objection which in the main are that this appeal lacks utilitarian value, that a party cannot be an Appellant as well as Respondent in the same appeal, that the Notice of Appeal has altered the status of the Respondents by description, that there are no reasonable grounds in this appeal and that the Appeal is incompetent.

Now, Order 10 Rule 1 of the Court of Appeal Rules 2021 provides for filing of Notice of Preliminary Objection. It did not require the filing of a separate “Affidavit in Support of Motion” as done by the Respondents because the Respondents’ process is on its face clearly a “Notice of Preliminary Objection”, presumably brought under the provisions of Order 10 Rule 1 of the Court of Appeal Rules. It is not a “Motion” as erroneously described in the heading of their “Affidavit in Support of Motion”. The distinction is that while Order 6 Rule 1 (a) of the Court of Appeal Rules stipulates that a motion shall be supported by an affidavit and written address, the provisions of Order 10 Rule 1 under which the Respondents appear to have based their Notice of Preliminary Objection requires the Objector to set out the Grounds of the Objection in a Notice of Preliminary Objection, not affidavits or written address. It is however reasonable to deduce from these provisions that where the Notice is on or involves grounds of facts, a supporting affidavit ought to be filed. Firstly, the entire seven grounds enumerated in the Respondents’ Preliminary Objection are all issues of law, not facts. Secondly, as hinted earlier, each of those grounds have been comprehensively argued in the Respondents’ Brief of Argument. In effect therefore, the Respondents’ supporting affidavit is in the first place unfounded, incompetent and secondly, to borrow the phrase of the Respondents’ themselves has no utilitarian value to the Respondents themselves, and as the Appellants contend, has no place in these proceedings. Consequently, the Respondents’ “Affidavit in Support of Motion” is struck out. See Clement Olafisoye v. FBN Plc & Anor (2013) LPELR-21963(CA), Okereke vs. James (2012) LPELR-9347(SC).

As summarized earlier, the Respondents’ Preliminary Objection is on the grounds that:
“1. The appeal has no utilitarian value to the appellants and is therefore academic, hypothetical and has no useful purpose to the appellants who are Committee members for the Local Government election in issue.
2. By nature of this appeal, the same body, i.e. APC cannot be Appellants and Respondents in the same appeal, where the APC Local Government Committee is the Appellants on one hand and APC and its National Organs are Respondents on the other hand. See pages 5796 and 5813 of vol. 7 of the record.
3. The capacity/status of the 1st – 1,325th Respondents has been altered by description of the Respondents in the Notice of appeal and both the Plaintiffs, APC and its National officers became for themselves and on behalf of the APC Caretaker/Extraordinary Convention Planning Committee”. See page 5813 of vol. 7 of the record.
4. The Appellants have changed their own status and the Committee described as “6th – 9th Defendants for themselves & members of the APC Local Government Congress Committee (LGCC) for Kano State” now changed their description on appeal to now be “For themselves & on behalf of the APC Local Government Congress Committee of Kano State”. See page 17 of vol. 1 of the record against page 5796 of vol. 7 of the record.
5. There are no reasonable grounds of appeal. The Grounds of Appeal are not premised or borne out of the decision of the trial Court contained at pages 5717 – 5795 of vol. 7 of the record as it is a complaining majorly about consideration, evaluation and reliance on MND3 – MND46 as shown in Grounds 7, 8, 12, 13, 14, among others, that is not part of the decision or the case at all.
6. The issues for determination formulated in the Appellants brief flows an incompetent notice of appeal, are all incompetent.
7. The appeal is incompetent and this Hon. Court lacks jurisdiction to entertain the appeal.”

The Respondents’ arguments on the first ground (supra) are canvassed at pages 8 to 10 of their grief. The sub-strum of their arguments under this point is that this appeal is merely academic, hypothetical, without any utilitarian value on the Appellants who are mere busy bodies with nothing at stake in the appeal or in its outcome. It is thus submitted that Courts do not possess the vires or jurisdiction to dabble into such matters, placing reliance on the decision in Festus vs AAC (2020) 4 NWLR (Pt. 1714) CA 276, Sanwo-Olu vs. Asuquo (2020) 11 NWLR (Pt. 1736) 458 and Anyawu vs PDP (2020) 3 NWLR (Pt. 1710) 134  at 176 among others.

Naturally, the Appellants disputed these arguments at pages 8 to 10 of their reply brief, by inter alia replying the Respondents with the poser: the “If the 1st – 1,320th Respondents are of the view that the Appellants are busybodies, why were they joined by the 1st – 1,320th Respondents as Defendants to their Claims before the lower Court? In fact my Lords, when the Appellants objected to their being joined as Defendants at the lower Court, the 1st – 1,320th Respondents had contended at the lower Court that the Appellants are necessary parties without whose presence, the suit at the lower Court could not be effectively and effectually determined.” Page 558 of the Record of Appeal referred.

Another allied argument of the Appellants is that a party cannot on appeal make a case that is different to his case before the trial Court, placing reliance on the decision in Ezomo vs. A.G. Bendel State (1986) 4 NWLR (Pt. 36), 448 at 462 462 among others. The Appellants have further argued strenuously that by seeking in this appeal to set aside the judgment of the lower Court, this appeal cannot therefore be viewed as one with no utilitarian value to them.

To begin with, the bone of contention which informed the Appellants’ suit as Plaintiffs at the trial Court still remains their underlying aim in this appeal. A careful study of the Reliefs sought in the Plaintiffs/Appellants’ Originating Summons reproduced in verbatim earlier herein and a careful study of their grounds of appeal in this appeal, leave no one in doubt as to their unwavering conviction in the value of this appeal to them. Secondly, the most prominent bone of contention between the parties at the trial Court as amply shown in the reliefs sought in the Originating Summons is one that is neither irredeemably lost nor damaged beyond repair because the contested result of and the officers said to have been elected in the disputed ward congress election are neither imaginary nor written off. Both are real; set to deprive the Appellants of their perceived or misperceived rights.

Thirdly, although the Record answers the question, I wish the Respondents have had the temerity or boldness to answer and explain the Appellant’s simple poser on who was it in the first place that made the Appellants parties before the trial Court? It was them – the Respondents! The Respondents found the Appellants valuable in the trial but are now seeking to oust them from this appeal as valueless Appellants with no utilitarian value to gain from the Appeal. This posture cannot be allowed. See Admiral Murtala Nyako vs. Adamawa State House of Assembly & Ors (2016) LPELR-41822(SC), Adeosun vs. The Governor of Ekiti State (2012) LPELR-7843(SC).

In consequence, the Respondents’ first Ground of Preliminary Objection (supra) is determined in the Appellants’ favour.

As reproduced earlier herein, the Respondents’ Grounds 2, 3 and 4 of the Preliminary Objection (supra) are all basically on their challenge against the competence of the appeal on the basis that the Appellants have now presented themselves in it as both Appellants and Respondents contrary to their status in the trial and that the Appellants have also altered their own capacity/status as well as that of the 1st – 1320th Respondents as if they were one and the same parties. Owing to the inextricable connection and the seeming similarity of the three grounds, the learned senior counsel for these Respondents argued same together under the omnibus heading “Alteration of Parties”.

Owing to the clarity of its presentation, I will not summarise but reproduce the Respondents’ key arguments on these grounds here thus:
3.5 A consideration of the suit at the trial Court shows that four persons were sued jointly to wit H.E. Mai Mala Buni, Senator John Akpandoedehe, Hon. Olayide Adewale Akinremi and Senator Abba Ali, as “the 2nd – 5th Defendants for themselves & on behalf of the APC Caretaker/Extraordinary Convention Planning Committee” and another set of four persons namely Dr. Tony Macfoy, Barrister Auwalu Abdullahi, Usman Musa Kaita Adebayo Iyaniwura were sued as “6th – 9th Defendants for themselves & members of the APC Local Government Congress Committee (LGCC) for Kano State”.
3.6 In the instant appeal, the Appellants have changed their own status and the Committee described as 6th – 9th Defendants for themselves & members of the APC Local Government Congress Committee (LGCC) for Kano State” now changed their description on appeal to now be “For themselves & on behalf of the APC Local Government Congress Committee of Kano State”. See page 17 of vol. of the record against page 5796 of vol. 7 of the record.
3.7 Similarly, the Plaintiffs and Defendants at the trial Court (except the Appellants and EC) were expressed as “For themselves and on behalf of the APC Caretaker/Extraordinary Convention Planning Committee”. See the Notice of Appeal filed by the Appellants and contained at pages 5796 to 5827 in Vol. 7 of the record. In other words, the 1st to 1325th Respondents are now representatives of APC inclusive of APC itself.
3.8 A perusal of both the Notice of Appeal and the brief filed by the appellants reveals beyond scintilla of doubt that the Appellants failed or neglected to indicate this crucial state of affairs. These capacities is grossly missing in this appeal and therefore potentially distort the capacity and standing of those parties in this appeal and impugns on the validity of the originating process before this noble Court.”
Referred in support of these arguments and submission are the decisions in Apeh vs. PDP (2016) All FWLR (Pt. 824) 1 at 16, Nteile vs Irawaji (2021) 6 NWLR (Pt. 1803) 411 at 447-448.

In fairness to the Appellants, their key arguments on same in their reply brief are no less precise and impressive and will accordingly be reproduced here too thus:
“My Lords, we humbly submit that the Notice of Appeal giving rise to the instant appeal has complied sufficiently and substantially with the provisions of Order 7 Rule 2(1) of the Rules of this Honourable Court. My Lords, we submit that the names and the addresses of all the parties directly affected in this appeal as well as their designations either as Appellants or Respondents have been stated correctly in the Notice of Appeal giving rise to this appeal and neither the Court nor parties in this appeal have been in any way misled by the particulars and designation of the parties in this appeal.
My Lords, we submit that the Appellants have not in any way displaced, removed any of the parties on record in this appeal neither have the Appellants included or added any party that was not a party at the lower Court in the appeal. The parties in the instant appeal are same as those at the lower Court and they have been appropriately designated as Appellants or Respondents respectively. The 1st – 1,320th Respondents only grudge is that the Appellants described themselves as appealing “For themselves and on behalf of the APC Local Government Congress Committee of Kano State” whereas they should have described themselves as appealing “for themselves & members of the APC Local Government Congress Committee (LGCC) for Kano State”. With utmost humility my Lords, we submit that the two above stated description of the capacities of the Appellants are substantially and principality the same and that the removal of the word “members of” from the said description as used by the Appellants in the Notice of Appeal giving rise to this appeal does not in any way change the capacities of the Appellants as reference to the Committee or members of the Committee are principally and substantially a references to the same set of persons. We urge my Lord to so hold.
Similarly, my Lords, we submit that the employment of the description “For themselves and on behalf of the APC Caretaker/Extraordinary Convention Planning Committee” coming immediately after the name of the 1325th Respondent on the Notice of Appeal at most may amount to a mis-description as it pertains to the 1st – 1320th Respondents who were Plaintiffs at the lower Court but it does not in any way amount to an alteration of the parties before this Honourable Court as both the Appellants and the Respondents in this appeal are properly constituted and designated. We urge my Lords to so hold.
My Lords, we submit that neither this Honourable Court nor parties in this appeal have been in any way misled by the particulars and designation of the parties in this appeal and no party to the proceedings at the trial Court has in any way been displaced and/or stranger to the proceedings at the trial Court has usurped his place to warrant the submissions at Paragraphs 3.3-3.9 in the 151-1320111 Respondents’ Brief of Argument.”

In support of these submissions, reliance was placed on the decisions in Ejirofor Apeh & Ors vs. PDP & Ors (2017) LPELR-42035(SC), NDIC vs. Qualitem Pharmacy Ltd (2018) LPELR-46726(CA) and Kalu vs. Odili & Ors ​(1992) LPELR-1653(SC) among others.

It is interesting to note that both senior counsel for the parties have relied on and prefaced their arguments with a reference to the provisions of Order 7 Rule 2 (1) of the Court of Appeal Rules 2021 which provides that:
(I) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the Notice of Appeal”) to be filed physically or electronically in the registry of the lower Court, which shall set the forth the grounds of appeal, stating whether the whole or part only of the decision of the lower Court is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal and shall be accompanied by a sufficient number of copies for service on such parties.”
Both learned senior counsel are on common ground that the parties and their capacity in this appeal shall be the same as in the trial. The dispute is on whether or not the Appellants have altered the trite position. It seems to me that the fulcrum of the dispute arose from the Appellants’ omission of the word “members” in the description of themselves in this appeal, that is to say, “for themselves and on behalf of the APC Local Government Congress Committee of Kano State” instead of their full description at the trial as “For themselves and members of the APC Local Government Congress Committee (LGCC) for Kano State.”
In my humble view, the mere omission of the word “members” in the description of the Appellants in this appeal does not in any way portend any violence to the composition and consistency of the status and capacities of the parties in this appeal viz-a-viz those in the trial. Common sense informs that there cannot be a committee without members and that a committee is simply a composition of its members. Reference to committee therefore necessarily implies reference to its members. It is obvious that the omission of the word “members’ by the Appellants in the description of their capacity in this appeal is simply a mistake which in any case neither prejudiced the Respondents nor is capable of changing the prospects of failure or success of the appeal. I agree with the Appellants that none of the parties in this appeal is under any confusion as to who and what the parties are, because none has claimed or even hinted that he is confused or misled by the Appellants/inadvertent omission of the word “members” to their description in this Appeal. The Appellants have neither changed their status nor is it liable to be so understood rationally by any of the Respondents.

In effect, the Respondents grounds 2 to 4 of their Notice of Preliminary Objection are determined in the Appellants’ favour.

Let me observe here that the Appellants’ copious analysis of the doctrine of abuse of Court process with the attendant evocation of its drastic consequence on this Appeal as argued at pages 6 to 8 of their brief is one that cannot be located anywhere in their Notice of Preliminary Objection. It was neither raised as a specific ground nor hinted or implied under any of the seven grounds enumerated in the Notice of Preliminary Objection, contrary to the provisions of Order 10 Rule 1 of the Court of Appeal Rules 2021 which provides that:
“A Respondent intending to rely upon preliminary objection to the hearing of give the Appellant three clear days before thy hearing, setting out the grounds of objection and shall file such notice together with ten hard physical copies and an electronic copy thereof the registry within the same time. The preliminary objection shall be argued in the Respondent’s brief of argument.”
All arguments canvassed on this issue are thus discountenanced.

The Respondents’ ground 5 of their Notice of Preliminary Objection, it may be recalled, is that which challenges specific grounds of appeal of the Appellants namely grounds 7, 8, 12, 13 and 14 on the ground that the complaints in these grounds do not flow from the decision of the trial Court. I have read the respective arguments for both sides on this issue; more particularly those in the Respondents’ brief at paragraphs 3.13 to 3.14 headed Defective Notice of Appeal and those in the Appellants’ Reply Brief at paragraphs 6.1 to 6.10. It is clear that the Respondents’ grouse under this ground of their preliminary objection is limited to the Appellants’ grounds of appeal numbers 7, 8, 12, 13 and 14 only. The Respondents seem comfortable with a hearing and substantive resolution of the rest of the thirteen grounds of appeal. In other words, those five grounds objected to by the Respondents, even if struck out will stilt not prevent the hearing of the appeal because an appeal will be heard even if it is on only one ground left surviving on the Notice of Appeal. In this situation, a Notice of Preliminary Objection is not appropriate. A Preliminary Objection should be against the hearing of an appeal as a whole and not against one or more grounds of appeal. See Umanah Jnr vs. NDIC (2016) LPELR-42556(SC); Onuegbu & Ors vs. Governor of Imo State & Ors (2015) LPELR-25968(CA).

Thus, as a ground of Preliminary Objection, the Respondents’ ground 5 (supra) is incompetent and accordingly struck out. By necessary implication, the Respondents’ ground 6 of the Preliminary Objection which is predicated upon ground 5 (supra) is also liable to be and is accordingly struck out as well.

On the whole, the grounds of the Preliminary Objection are determined in the Appellants’ favour, the Preliminary Objection adjudged unmeritorious and consequently dismissed.
​THE MAIN APPEAL
As may be recalled, the Appellants’ grounds of appeal as well as the issues distilled therefrom for the determination of this Court have all been laid bare herein earlier. In case it is forgotten, the three issues formulated in the Appellants’ Brief of Argument are on whether the trial Court had jurisdiction to entertain the Respondents’ suit, whether the suit was appropriately commenced by way of Originating Summons and whether the trial Court was right in granting all the reliefs sought by the Respondents. The Respondents’ two issues are on whether the Appellants’ objections to the trial were not rightly dismissed by the trial Court and whether the findings and orders made by the Court were not in accordance with the evidence in the suit.

Let me start by delimiting the scope of the determinations that are to follow.

Upon the express concession of the Appellants’ learned senior counsel at paragraphs 9.1 – 9.2 in the Appellants’ reply grief that the Appellants have abandoned grounds 1, 8, 10 to 17 of their appeal and further urging this Court to strike out same, those grounds are accordingly struck out.

There is still however ground 7 to contend with. Learned senior counsel for the Respondents has argued that this ground be struck out as incompetent as it does not flow from the decision of the trial Court having been predicated upon nonexistent Exhibits MND3 – MND46. Although the learned senior counsel for the Appellants concedes the non-existence of these exhibits in the record, he has argued however that reference to these exhibits is made only in particular 3 under the said ground which even if declared defective shall not spill over its incompetence on the other particulars and the ground itself.

I am in agreement with both learned senior Counsel in part. As correctly observed and argued by the learned senior counsel for the Appellants, Exhibits MND3 – MND46 referred in particular 3 of the Appellants’ ground 7 cannot be located anywhere in the record and cannot therefore give rise to the Appellants’ challenge against its evaluation by the trial Court. On the other hand, I agree also with his learned friend for the Appellants that the effect of the sin of incompetence in the Appellants’ particular 3 shall not be extended to other valid particulars or the main ground itself which patently have nothing to do with Exhibits MND3 – MND46. In the same way that an incompetent, defective ground of appeal does not necessarily affect the competence of other different grounds of appeal, an incompetent, defective particular does not similarly affect the competence of other different particulars, even if there be only one particular that survives the competency test.

It is clear that the Appellants’ particular 3 is incompetent having been predicated upon a nonexistent, erroneous basis and is accordingly struck out.

After reading the entire arguments in both briefs, it is clear that the Respondents’ arguments under their first Issue relate to those in the Appellants’ first and second Issues while the Respondents’ second issue relates to the Appellants’ third issue. Thus, the Appellants’ first and second issues will be treated here together with the Respondents’ first issues, beginning however with their respective arguments in the Appellants’ second issue on whether the suit between the parties at the trial Court was appropriately commenced by way of Originating Summons.

At paragraphs 5.3 to 5.12 on pages 19 to 23 of the Appellants’ brief are their arguments and submissions on this Issue while the Respondents’ are canvassed at paragraphs 5.48 to 5.5 on pages 24 to 26 of their brief. The Appellants’ reply brief contains at its paragraph 9.13 only two sentences of reply to the Respondents’ arguments with nothing significantly new or value added.

Originating summons is a method of commencing a suit on facts and claims which do not involve substantial disputes, where the main point in issue is one on construction and interpretation of document or statute or one of pure law. It is a method reserved for issues involving short questions of construction and not matters of substantial controversy. It is thus one of the recognized methods under the various High Court Rules in Nigeria. The High Court of the Federal Capital Territory (Civil Procedure) Rules 2018 also makes provisions for commencing a suit by Originating Summons in its Order 2 Rule 3 (1), (2) and (3) thus:
“(1) 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.
2. 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.
3. The Court shall not be bound to determine any such question of construction if in its opinion it ought not to be determined on originating summons but may make any such orders as it deems fit.”
The underlying aim of originating summons methods and procedure is simplicity and case in the conduct of proceedings on issues or facts which are not materially in dispute. Whether there exist substantial or simple disputes in a given suit is a question that can only be answered by the character of the affidavit facts and exhibits attached to those affidavits. It is not by the numbers of pages of the affidavits or the volumes of exhibits attached but by the constitution of the main facts and evidence.

It is in this light that this Court has carefully perused the entire facts and evidence of the parties on the Originating Summons before the trial Court. Learned senior counsel for the Appellants has argued under his second issue, just as he did before the trial Court, that the suit was wrongly commenced by Originating Summons. He has referred us to pages 166 to 173 and pages 564 to 566 of the Record (Vol. 1) to demonstrate the hostility between the evidence of the parties which he further argued raised several yet unresolved questions such as:
“a. In what manner was the 1321st Respondent’s Kano State Local Government Congresses of 4th September, 2021 conducted?
b. What exactly is the actual composition of the 1321st Respondent’s Local Government Congress Committee for Kano State?
c. Who authorised the 3rd and 4th Appellants to issue Reports and results for the 1321st Respondent’s Local Government Congress Committee for Kano State when the 1st and 2nd Appellants who are saddled with the said responsibility were still alive and not dead nor suspended as Chairman and Secretary of the said Committee and had sufficiently carried out the responsibility of the Committee?
d. Are the 1st-1320th Respondents actually members of the 1320th Respondent?
e. Whether the 1st-1320th Respondents actually members of contested executive positions in the 1321st Respondent’s Local Government Congress in Kano State?
2. Which result and report is actually the authentic result and report of the 1321st Respondent’s Local Government Congress Committee for Kano State?

He has also argued that the allegation of forgery raised by the Respondents in respect of Exhibits APC2 – APC46 found at page 520 of the Record (Vol.1) is not one that could properly be tried and determined by Originating Summons. He rooted his submissions in the decisions of Ubah vs Fidelity Bank Plc (2013) LPELR-20658(CA), Alfa vs. Attai & Ors (2017) LPELR-42579(SC) and Adegbuyi vs. APC (2014) All FWLR (Pt.761), 1486 at 1505. He submitted that by determining all these vexed issues by Originating Summons, the trial Court failed to properly evaluate the evidence in the trial.

For the sake of clarity, I will not summarise but reproduce in verbatim the key portions of the submissions of the learned senior counsel for the Respondents here thus:
5.49 My Lords, hostility in affidavit evidence that requires calling of evidence is by a clear demonstration of such paragraphs to enable the Court appraise and evaluate the paragraphs. It is not drawn from counsel’s address. The Appellant’s duty is to donate materials to substantiates the wrong exercise of discretion, where the materials are, not present, the appellate Court will not interfere with the decision. See Akparabong Comm. Bank (Nig) Ltd v UBA Plc (Supra) AT page 218F-H. at pages 5770 of vol. 7 of the record, the trial Court examined the processes, the central questions in issue and concluded as follows:
“There are no materials conflicts central to the determination of this suit. Like I have said earlier in this judgment, this suit is not a complaint about the conduct or outcome of the congresses but the action of the Defendants in rejecting a purportedly valid result in the … Defendants headquarters in Abuja. In my view, affidavit evidence should be sufficient.”
5.50 This crucial finding of fact of the trial Court has not been directly challenged or shown to be perverse. The apex Court in PDP v Dogi-Eremienyo (2021) 9 NWLR (Pt. 1781) 274, Pp. 289, paras G-A expressed that where the finding of fact were not challenged, especially on the fact that the originating summons is not conflicting on materials details, it will be wrong to call for evidence or exchange of pleadings.
5.51 The Appellants in paragraph 5.6 of their raised some fresh issues that are not material to the central determination of the suit. All the parties agreed on the composition of the committee that conducted the L.G Congress election, agreed that election and the result submitted to APC Headquarters and later was the decision to substitute the plaintiffs as the winner for another unknown group subject to the dictates of the stakeholders in deviance of APC Constitution.
5.52 APC’s admission in paragraph 4 iv-vii and the Appellants’ admission shown in the 3rd Appellants depositions in paragraph 8 to 12 at pages 565-566 and 579-580 of volume 7 of the record. Despite these clear admissions of fact, the appellant are raising pre-local government congress election issues that are not central to the disputes. We urge this noble Court to hold that it is conflict central and material to the issue at hand i.e. why substitution of the plaintiffs as winner for an unknown set of persons and if stakeholders decision is allowed under APC Constitution of guideline to override the results of the democratic election showing the plaintiffs as the winner of the election.
5.53 In paragraph 5.9 of the Appellant brief, the Appellants argued that the plaintiffs raised criminal allegation of forgery in Exh. APC2-APC46. However, under the ground 7 raising the issue being argued, the complaint is not on APC2-APC46 but on MND3-MND4. The argument therefore lack basis.”

Let me say straight away that the dispute submitted before the trial Court certainly goes beyond the shores of Order 2 Rule 3 of the FCT (Civil Procedure) Rules (supra); because it is not just about the interpretation of documents but more significantly on the resolution of the hugely contested factual disputes behind them. It is also not about the interpretation of the APC Constitution only as camouflaged under the five issues submitted for the determination of the trial Court in the Originating Summons but more importantly about the resolution of the acrimonious facts of the parties as demonstrated through their materially conflicting affidavit facts found at pages 166 to 173 and 564 to 566 of the Record (Vol. 1). After reading the entire judgment of the trial Court at pages 5718 to 5797 of the Record (Vol. 7), I cannot locate where the trial Court resolved the core questions raised by the Appellants at pages 20 of their brief (supra) largely because those questions could not be resolved by Originating Summons. Those questions go to the root of each of the five issues for determination in the Originating Summons before the trial Court. In my humble view, the trial Court was wrong when it proceeded to determine those Issues by Originating Summons. Consequently, the Appellants’ second issue and the corresponding arguments for the Respondents under their combined issue 1 at pages 24 to 26 of their brief are resolved in favour of the Appellants.

In logical sequence, the next issue to consider is the Appellants’ first issue, argued also by the Respondents under their first issue at paragraphs 5.6 to 5.18 of their brief. Once again, the issue is on whether the trial Court had jurisdiction to entertain the Respondents’ Originating Summons.

The learned counsel for the Appellant prefaced his arguments by reechoing the trite position of the law on jurisdiction, citing several decisions to the effect that a Court may entertain a matter only if it has the requisite jurisdiction to do so. In arguing that the trial Court lacked jurisdiction to entertain the Respondents’ Originating Summons, the learned senior counsel referred us to the affidavit in support of the Originating Summons which he contended reveals clearly that the suit was about the Local Government Congress of the 1st – 1320th Respondents held in Kano State which produced two different contested Results with the principal issue in the suit being a challenge to the right of the 1321st Respondent (APC) to choose which of the two results it will adopt. He argued further that the trial Court consequently delved into the knitty gritty of the said election in Kano State without the requisite territorial jurisdiction to do so. Learned senior counsel referred to portions of the Judgment pages 5784, 5788 and 5790 to demonstrate how the trial Court delved into the nitty gritty of the conduct of the Local Government Congress held in Kano State over which it has no territorial jurisdiction. He referred to and quoted copiously some portions in the decisions in Prince Yahaya Oyidi Audu vs. APC & Ors (2019) LPELR-48134 (SC) and Edo Cement Co. Ltd & Ors vs Atta (2018) LPELR-46809 (CA) to buttress his argument.

Another line of argument for the Appellants is that the subject matter of the Respondents’ suit before the trial Court is one that is all about the internal affairs of the 1321st Respondents (APC) which (affairs) the trial Court has no jurisdiction to venture into, not being a suit complaining about unlawful substitution of a political party candidate under Section 87 (9) of the Electoral Act 2010 as amended. Reliance was placed on several decisions which include Agi vs. PDP (2017) 17 NWLR (Pt. 1648) 548, APC vs. Karfi (2018) 6 NWLR (Pt. 1616), 479 and Ufomba vs. INEC (2017) 6 NWLR (Pt. 1351), 501 at 521-522. He submitted that the Court was wrong in assuming jurisdiction over the internal affairs of the 1320th Respondents.

For the Respondents, the arguments and submissions of their learned senior counsel are contained at pages 5.6 to 5.16 at pages 12 to 16 of their Brief. Just as done by his learned friend for the Appellants, he too referred this Court to portions of the trial Court’s ruling on the same objection raised separately as a preliminary issue, which as posited by the Respondents’ senior counsel, correctly represents the trial Court’s reasoning and decision on the point at hand. He thus referred to and quoted the trial Court’s decision found at pages 5761 – 5762 of the Record (Vol. 7) thus:
“I hold the firm view that the prayers of the plaintiffs and issues raised in the originating summons can be addressed without interrogating the conduct or outcome of the congresses held in Kano State. In IBRAHIM v APC (which is on all fours with the instant suit regarding territorial jurisdiction) the Supreme Court held thus:
‘there is no dispute that the corporate officers of the 1st and 3rd Respondents are within the Federal Capital Territory, the alleged substitution corroboration by the Respondents Exhibit C and the Appellant’s Exhibit J2, being the course of action and the active actors of the 1st and 3rd respondent, took place within the FCT’…
The Appellant was therefore, very much in order and within the purview of Order 9 Rule 4 of the High Court of the FCT (Civil Procedure) Rules, 2004 (now Order 3 Rule 4 of 2018 Rules) when he commenced the action within the territorial jurisdiction of the FCT High Court’
I hold the view that Order 3 Rule 4 of the Rules of this Court 2018 permits the plaintiff here to commence this action in FCT High Court that is where the Defendants resides or carries on business or where the cause of action arose”
and concluded at pages 5763-5764 of vol.7 of the record to wit:
“It is clear that the issue of forum convenience is misconceived as the nature of the reliefs sought in the case of AUDU VS APC, DALHATU VS TURAKI, does not involve decision of APC in Abuja attempting to substitute result or report, rather the case applicable here is the case of IBRAHIM VS APC (NO.1) (2019) 16 NWLR (PT 1699) 44 at 46-462.”
Accordingly, I must find and resolve issues one and two in favour of the plaintiffs/Respondents. The Court has the territorial jurisdiction to hear this suit and where he finds that a Court has territorial jurisdiction any argument on forum shopping or convenience becomes untenable. I so hold.”

He also argued that the Appellant did not challenge the specific findings of the trial Court in ground 4 of their Notice of Appeal but simply reargued their objection on territorial jurisdiction without stating which specific findings they are complaining against.

With equal degree of force, the learned senior counsel further referred this Court to yet another portion of the trial Court’s decision at pages 5760 – 5761 of the Record (Vol. 7) which he submitted also represents the correct present position of the law thus:
“From the above reliefs and affidavit of the Plaintiffs, it is contended that they had contested and won the Local Government area congress erection conducted in Kano State and result duly issued and sent to APC (1st Defendant) in their headquarters in Abuja. And that it was the attempt to substitute the result that gave birth to this case. In other words, the case has to do with the decision of the 1st Defendant (APC) attempting to refuse their result.
This fact were (sic, was) corroborated by the 6th – 9th Defendants in their counter-affidavit wherein they admitted the results in (Exhibit F1 & F2) of the outcome of the election conducted. This fact was further corroborated by the affidavit of the 1st – 3rd Defendants in paragraph 4(iv) & (v) here it was averred that “…the report and summary of result were submitted to and received by the party. A copy of the report is attached as Exhibit APC2.” And “later, the APC Kano Stakeholders requested the party to discard report of the Committee or any other and to substitute same with another report submitted to the Party without list attached”
I hold the firm view that the prayers of the plaintiffs and issues raised in the originating summons can be addressed without interrogating the conduct or outcome of the congresses held in Kano State.”

Learned senior counsel argued that the Appellants did not challenge the trial Court’s finding that the suit before it centred on the attempt to substitute the results of the Local Government Congress election nor did they also challenge the trial Court’s reliance on the decision in Ibrahim vs. APC (Vol.1) (supra) which represents the correct position of the law on the suit between the parties at the trial Court. The trial Court indeed held thus:
“How about the case of AUDU v. APC (supra)? I hold the view that where the complaint of the plaintiff cannot be determined without recourse to the conduct or outcome of the election held outside the FCT, FCT High Court will lack jurisdiction to entertain this suit. However, in this suit, it is not an issue of who won the congress election. There was a congress election and a consensus mandate. Both affidavit and Exhibit APC2 in the joint counter affidavit of the 6th – 9th Defendants respectively. That being the case, this Court would not consider events that took place in Kano State, but as the plaintiff have prayed, to consider whether the only valid report is the one submitted as Exhibit F1. I agree with the Plaintiff/Respondents in the case of AUDU v. APC is not a precedent to this suit. I so hold.
See pages 5762 – 5764 of the Record (Vol. 7)

On the Appellants’ argument that the dispute and the issues submitted before the trial Court are intra party and thus non-justiciable, the response of the Respondents is that the suit is not about internal affairs of the APC but about the decision of the APC to substitute the winner of the Local Government Congress election which is a violation of the APC Constitution and Guidelines which cannot be regarded as internal affair of the party.

Learned senior counsel further distinguished the decision in APC vs. Moses (supra) from the facts of the present case because, as he argued, the case of APC vs. Moses relates to sale of nomination forms by the party to its members. It was also argued that the act of the APC in substituting the names of the winners at the Local Government Congress election amounts to violation of the provisions of Section 87 (9) of the Electoral Act and the APC Constitution and Guidelines. Reliance was placed on the decision in Akpatason vs. Adjoto (2019) 14 NWLR (Pt. 1693), 501.

I note all the other allied arguments for both sides.

In my humble view, the question of whether or not the Respondents’ suit is justiciable is, as important as the question is, secondary to the question of whether or not the trial Court in the first place had jurisdiction to entertain the suit. Jurisdiction of a Court is the lifeline of any suit before it. In the context of this appeal, it is territorial jurisdiction in particular that seems to be the dominant complaint in the manner argued under the Appellants’ first issue for determination and as particularized under grounds 2 to 6 of their Notice of Appeal as well as in the manner argued also for the Respondents under a part of their first issue for determination. As its phrase denotes, territorial jurisdiction refers to or implies a certain geographical area within which the power and authority of a Court can be exercised outside which the Court lacks the vires to act. Jurisdiction, whether territorial or general, is statutorily conferred on a Court by the law or Act establishing it. See Edo Cement Co. Ltd & Ors vs. Atta (supra); Idemudia vs. Igbinedion University & Ors (2015) LPELR – 24514(CA).

While it is not in dispute between the parties that territorial jurisdiction of a Court is paramount in deciding which Court to approach, they have however persistently differed from day one on the critical question of whether or not the trial Court in the appeal at hand had territorial jurisdiction over the Respondents’ suit before it. As their argument revealed, the gist of the Appellants’ complaint here is that the trial Court wrongly assumed jurisdiction on the Respondents’ suit over a cause of action that clearly occurred in another State jurisdiction. The Respondents, as has been shown, contend in the contrary, maintaining that their cause of action and the reliefs they sought from the trial Court are pointedly narrowed to the acts done or set to be done in the Federal Capital Territory which validly clothed the trial Court with the requisite territorial jurisdiction.

Before proceeding on that line however, there is need to address that Respondents’ challenge at paragraph 5.0 of their brief which was summarized earlier herein to the effect that the Appellants did not challenge the specific findings of the Court on this issue. For the sake clarity, the Appellants’ ground 4 (supra) is once again reproduced here in context thus:
“The lower Court erred in law which error has occasioned a miscarriage of justice to the Appellants when it held that it had the requisite territorial jurisdiction to entertain the 1st – 1320th Respondents’ suit which is centered on the conduct and outcome of the APC Local Government Congresses in 44 Local Government Area of Kano State, which subject matter is an intra-party issue.”

Will it therefore be right to argue as the Respondents did here that the Appellants have not challenged the findings of the trial Court on this Issue? Is the learned senior counsel suggesting that the Appellant must go further to quote all the various portions of the trial Court’s findings on this Issue? Did the Appellants not enumerate specific particulars under the issue? Are the grounds and the -particulars vague and are the Respondents thereby misled? In my considered view, the simple answer is in the negative against the Respondents’ challenge. The Appellants have certainly raised clear complaint in ground 4 (supra) against the findings of the trial Court that it has territorial jurisdiction to entertain the suit.

Returning to the pith of the issue, it may be recalled that have earlier reproduced the issues for determination submitted to the trial Court on the Respondents’ Originating Summons. I have read them once again, in context. Ditto the Reliefs sought thereby. The affidavit facts of the parties both on the Appellants’ Preliminary Objection and in the substantive suit have not escaped my attention too. From all these processes, more particularly the Respondents’ main suit, was the trial Court on proper footing when it assumed territorial jurisdiction over the suit?

My humble view, derived from due consideration of the facts on both the Preliminary Objection and the main suit, is that the suit was substantially about the contest on the APC Local Government Congress election result held in Kano, aspect of the suit against the decision of the APC’s National Officers decision not to recognize a particular result of the election and their decision to substitute one result with another are all secondary questions to the main, real issue in dispute which is the outcome of the election itself. The underlying, real disagreement is about the conduct and the outcome of the election itself, the issue of recognition or substitution of a particular candidate being a dispute arising from the main dispute on the conduct and outcome of the election itself. Without resolving the principal dispute on the conduct of the election and its outcome, it is impossible to resolve the auxiliary disagreement over the alleged unfair recognition or substitution of one candidate or another. Any resolution of the secondary dispute cannot rationally and fairly be achieved nor can any meaningful benefit inure in the supposed favorite without resolving the principal dispute. Of what use is a car key without a car? The view of the learned trial Judge at page 5761 of the Record (Vol. 7); to wit:
“I hold the firm view that the prayers of the Plaintiffs and the issues raised in the originating summons can be conduct or outcome of the congress held in Kano State”
cannot, with respect, be correct because the latter dispute is a direct offshoot of and is inextricably tied to the former principal dispute.
​In essence, the suit was not in reality about the alleged recognition or substitution by the APC National Headquarters in Abuja of a particular, favoured candidate in the Local Government Congress election held in Kano State but was majorly all about the conduct and outcome of the election itself. The act of recognition or substitution of a particular candidate is one that merely seeks to validate or upturn the election of the alleged winner or favorite of the party leadership at Abuja which exercise is deeply immersed in the bigger dispute on the conduct and manner of the election. Those are the underlying facts behind the reliefs sought by the Respondents in this appeal. I should also add that the Respondents’ attempt to reconstruct the theme of the suit by invoking the provisions of Section 87 (9) of the Electoral Act is one that can not fit in the facts in the trial firstly because neither of the contestants in the Local Government Congress election is an aspirant for an election under the Act nor is the Local Government Congress election a primary election. The facts and the reliefs sought in the suit have nothing to do with Section 87 (9) of the Electoral Act. As its marginal note indicates, the entirety of the provisions of Section 87 of the Electoral Act deals with nomination of candidates by political parties. For ease of understanding, I reproduce Section 87 (9) of the Electoral Act here thus:
“(9) Where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall be included in the election for the particular position in issue.”
See Ufomba vs. INEC (2017) LPELR-SC.75/2016; Adebayo vs. PDP (2013) 17 NWLR (Pt. 1382) 1.
Furthermore, by the provisions of Section 285(1) of the Constitution as altered by the provisions of Section 2 of the Constitution FRN 1999 (Fourth Alteration) Act 2017, the suit is not a pre-election matter because neither are the facts challenging non-compliance with the provisions of the Electoral Act or a decision by INEC in respect of nomination for election under the Act nor is the Local Government Congress election the election that is meant under those provisions. See Section 285 (14) of the Constitution as amended.

In the final analysis, the more I read the judicial authorities referred by both learned senior counsel the higher the degree of my conviction rises in the all-encompassing relevance and applicability of APC vs. Moses (2021) 14 NWLR (Pt. 1796), 278 and Audu vs. APC & Ors (2019) LPELR-48134(SC). The facts and circumstances in those decisions are similar to those in the present appeal. In both decisions, the Supreme Court held that the High Court of the FCT lacks jurisdiction to entertain suits on facts which occurred outside its territorial jurisdiction, just as happened in the appeal at hand. As explained severally earlier, the background facts which gave rise to the reliefs sought in the suit before the trial Court in the FCT occurred wholly in Kano State. The trial High Court in the FCT lacked territorial jurisdiction to entertain the suit. In law, proceedings conducted without jurisdiction are a nullity and must be set aside.

At this stage, having held as I did, it will be needless to proceed into determinations on the remaining issues for determination.

In effect, the Appellants’ first issue for determination (supra) is resolved in their favour. The appeal succeeds. The proceedings and the judgment in suit no FCT/HC/CV/2532/2021 are hereby set aside.

HARUNA SIMON TSAMMANI, J.C.A.: I had the benefit of reading in advance, the draft of the judgment delivered by my learned brother, I. B. Gafai, JCA.

Let me begin by stating that, I am in complete agreement with my learned brother that the Preliminary Objection raised in this appeal has no merit in all its facets. It is accordingly dismissed.

​I have carefully read the judgment on the main appeal. I have no hesitation in agreeing with my learned brother that the appeal is meritorious. Particularly, I hold that this matter is one which should not have been initiated by way of an Originating Summons. This is particularly so, considering the conflicting nature of the affidavit evidence presented before the Court. Originating Summons is not suitable for all claims presented before a Court. Though, it is meant for quick disposal of suits, it is only available to persons who claim under a deed, will or other written instrument, wherein, the Plaintiff seeks the constructions of certain questions arising under the instrument. Thus, where there is serious dispute on facts arising from such dispute, an Originating Summons should not avail the plaintiff. See Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423; Jev v. Iyortyom (2014) 14 NWLR (Pt. 1428) 575 and Dapianlong & Ors. V. Dariye & Anor (2007) 8 NWLR (Pt. 1036) 332.
In the instant suit, it is my view that the issues that sprang-up therein could not be resolved by affidavit evidence only. The Court had a duty to resolve, which of the conflicting results and reports of the congresses was valid. This is moreso when the issue of falsification had been raised. Furthermore, the congresses having produced two results, witnesses had to be called and cross-examined in order to determine which of the two results to confer with legitimacy and validity. That could not have been achieved by poring into the depositions in support of or against the Originating Summons only. It is on that note, that I hold that the trial Court erred when it determined the 1st – 1,320th Plaintiffs/Respondents in an Originating Summons.

It is for the above reasons and the other reasons ably adumbrated by my learned brother in the lead judgment, that I agreed that this appeal has merit. It is accordingly allowed. Consequently, the entire proceedings and the judgment of the Federal Capital Territory High Court, delivered on the 17th day of December, 2021 in Suit No: FCT/HC/CV/2532/2021 is hereby set aside.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been privileged to read in advance a draft copy of the leading judgment just delivered by my noble Lord, Isah Bature Gafai JCA, and I am in complete agreement with the adroit reasoning and the impeccable conclusions reached therein to the effect that the appeal has merit and ought to be allowed, and I hereby adopt as mine.

My Lords, I shall just say a word or two by way of my contribution to the rich analysis in the leading judgment. Now, on the aspect of the 1st – 1320th Respondents’ preliminary objection contending that this appeal is no longer of any utilitarian value, I am aware and it is true that in law a Court would lack the jurisdiction to hear and determine matters which are or have become merely academic or hypothetical or which due to the occurrences of certain events had rendered such matters even if pending merely academic or hypothetical. This is so because the Courts are loath to and do not saddle themselves with the consideration of matters which though pending before them had become merely academic and therefore, of no utilitarian value to either of the parties. Thus, for a Court to continue to exercise its jurisdiction over matters pending before it, the matters must have in them issues which remain live for determination and of utilitarian value to one or more of the parties. In Charles Oke & Anor V. Dr. Rahman Mimiko & Ors ​(2013) All FWLR (Pt. 693) 1853, the full Court of the Supreme Court per Muhammad JSC, had this to say on this issue:
“It is a principle of law long settled that the general attitude of the Courts of law is that they are loathe in making pronouncements on academic/hypothetical issues as it does not serve any useful purpose.”
See also UBA Plc V. Dana Drugs Ltd (2018) LPELR-44103 (CA), per Georgewill, JCA, Adeogun V. Fashogbon (2008) 17 NWLR (Part 1115) 149 AT p. 180, Peoples Democratic Party V. INEC (2014) LPELR – 23808 (SC) and Action Congress v INEC (2007) LPELR – 8988 (CA).

So, is this appeal no longer of any utilitarian value to the Appellants and thus rendered merely academic and whose determination would confer no value on the parties? Honestly, looking at the issues as canvassed in the appeal bordering not only on the, issues of competence and or jurisdiction, which is never too early and never too late to raise, and is the lifeblood of every cause or matter in the Courts, but also borders on the entire 44 Local Government Congress of the APC in Kano State and the still lingering issues as to who had emerged from the said Local Government Congress, and considering the accepted position of the Appellants as the APC Local Government Congress Committee for Kano State appointed by the APC Caretaker/Extraordinary Convention Planning Committee to conduct the APC Local Government Congress for the 44 Local Government in Kano State, I cannot even fathom the rationale for this contention by the 1st – 1320th Respondents that a challenge to their declaration as the rightful winners of the said Kano Stale APC Local Government Congress and affirmed by the judgment of the Court below is no longer of any utilitarian value! I find this contention not only preposterous but highly misconceived, completely undeserving and lacking in substance. I un-hesitantly overrule and discountenance it in its entirety! In the circumstances therefore, I join my noble Lord in the leading judgment to overrule and dismiss the preliminary objection of the 1st – 1320th Respondents for lacking in merit.

Honestly, I find almost all the myriads of issues raised by way of preliminary objection by the 1st – 1320th Respondents, and challenging the competence of this appeal as akin to raising a storm in a tea cup or indeed making a mountain out of a molehill – making too much out of trifles! In law these objections all amounted to are mere trifles which should not be allowed to obfuscate the real, crucial and substantial issues in this appeal before this Court. In Andrew V. Oshoakpemhe & Ors(2021) LPELR- 53228 (CA) AT Pp. 119 – 121, this Court had per Georgewill JCA, stated inter alia thus:
“These days the Courts should or ought to concern themselves less with mere technicality and concern themselves more with matters of real substance and substantial issues in contention between the parties in order to render substantial justice to them. Long gone are the heydays of technicality riding roughshod over substantial justice! The Courts have since charted a new path aimed at consolidating substantial justice between the parties and would sparingly accord mere technicality, just for its sake, any pride of place except in very well deserving cases. Thus, the stance of the Court below, and sought to be justified in this appeal by the learned counsel for the 1st Respondent under issue five, resonates more with undue technicality than with substance and justice!

The law nowadays lays more emphasis on the overriding need to render substantial justice over and above technical justice by the Courts. Thus, in the legal jurisprudence in Nigeria today, substantial justice is king!”
See also Yusuf V. Adegoke (2007) LPELR – 3534 (SC), Dangote General Textile Products Ltd & Ors V. Hascon Associates Nig. Ltd. & Anor (2013) LPELR – 20665 (SC), Duke V. Akpabuyo L.G. (2005) 19 NWLR (Pt. 959) 130 AT pp. 142-143; U.T.C. (Nig.) Ltd V. Pamotei (1989) 2 NWLR (Pt.103) 244, Jeric Nigeria Ltd V. Union Bank Nig Plc. (2000) 15 NWLR (Pt. 691) 477 and Chief Adebisi Adegbuyi V. All Progressives Congress & Ors (2013) LPELR – 22799 (CA).

My Lords, the crux of the main appeal, as already brilliantly and exhaustively discussed, considered and resolved under issue one in the leading judgment had to do with whether the subject matter of the claims of the 1st – 1320th Respondents as Claimants before the Court below were such as could be commenced and determined by means of an Originating Summons? I have also taken time to looked closely at the questions for determination, the reliefs sought and the depositions in the supporting affidavit to the 1st – 1320th Respondents’ Originating Summons.

Now, it is almost inconceivable that parties would go to Court to litigate over issues in which there are no disputes at all between them perhaps just of the fun of it. In other words, every suit would involve some form of dispute or even a disagreement, and if it were not so what would then be the basis of the litigation? Thus, even Originating Summons would involve the resolution of some form of dispute, since even in the construction of documents there is a disagreement as to its meaning or scope or purport, hence the resort to the Court. What is prohibited therefore, in an Originating Summons are substantial disputes as to facts.
It is well settled that Originating Summons is usually used when what is in dispute is the mere construction of documents or interpretation of law in respect of which pleadings and oral evidence at plenary hearings are unnecessary or where there are no real disputes as to facts between the parties. It would therefore be improper to commence civil proceedings by means of Originating Summons where the facts are likely to be in substantial disputes. Thus, civil proceedings for which it is used usually involves questions of law rather than disputed issue of facts. See Order 2 Rule 3(1), (2) and (3) of the High Court of the Federal Capital Territory (Civil Procedure) Rules 2018.
What then are the facts in this case before us now? The facts of this case are not to be found in the submissions of counsel, no matter how brilliant and comprehensive, but in the affidavit evidence of the parties, particularly the 1st – 1320th Respondents and the Appellants as can be gleamed from the Records of Appeal. It would appear that even on the 1st – 1320th Respondents’ own showing alone the issues between the parties are obviously very contentious and substantial disputes as to facts so materially crucial as to necessitate the calling of oral evidence or ordering for pleadings to be filed.
My Lords, I am aware that it is not every seeming conflicts arising from affidavit evidence that would warrant the calling of or resort to oral evidence for its resolution but where the issues of facts are so contentious and borders amongst others on allegations of falsification of document, it calls for caution on the path of the Court below from rushing to determine such a claim on affidavit evidence only in an Originating Summons, as such a case is one, in my view, more suited and proper for determination on the pleadings and evidence of the parties under proceedings begun by means of a Writ of Summons.
In law, the Originating Summons procedure is limited in its scope of use and should not be adopted in civil proceedings in which there are substantial disputes of facts. It should never be resorted to in cases where there are controversies and a lot of disputed facts between the parties. In such cases, a Claimant should approach the Court by way of a Writ of Summons, which will allow each side to file pleadings and sort out the issues in dispute between them at full trial. See Johnson & Ors V. Mobil Producing Nigeria Unlimited & Ors (2009) LPELR – 8280 (CA). See also Pam V. Mohammed (2008) 16 N.W.L.R (pt. 112) 1 AT p. 88; Esezoobo V. Nsitf & Ors (2012) LPELR- 9282 (CA), Ossai V. Isaac F. Wakwah (2006) 4 NWLR (Pt. 969) 208 and AG. Adamawa V. AG. Federation (2005) 18 NWLR (Pt. 958) 581.
My Lords, on the totality of the affidavit evidence of the panics as in the Records of Appeal, it is very clear and I so hold that the allegation of falsification of Exhibits APC2 – APC46, at page 520 in Volume 1 of the Record of Appeal, was central to the claims of the 1st- 1320th Respondents against the Appellants as Defendants before the Court below. It follows therefore, and I so hold firmly, that the Originating Summons procedure resorted to by the 1st – 1320th Respondents was clearly the most inappropriate and improper means or way to commence such an action founded steeply on allegation of falsification of Exhibits APC2 – APC46, which allegations being criminal in nature and central to the claims of the 1st – 1320th Respondents must be proved beyond reasonable doubt even though made in a civil proceeding and thus, more suitable for proceedings commenced by means of Writ of Summons. The 1st – 1320th Respondents’ Originating Summons procedure by which they initiated their suit against the Appellants before the Court below was therefore, completely and irredeemably improper. See Section 135(1) of the Evidence Act 2011. See Order 2 Rule 3(1), (2) and (3) of the High Court of the Federal Capital Territory (Civil Procedure) Rules 2018.  ​

See further UAC Ltd V. Taylor (1936) 2 WACA 70, Usenfowokan V. Idowu (1969) NMLR 77 and Nwobodo V. Onoh & Ors. (1984) NSCC 1.

It is for the above few words of mine but for the fuller reasons adroitly marshalled out in the leading judgment that I too hold that this appeal has merit and ought to be allowed. Accordingly, it is hereby also allowed by me. I shall abide by the consequential orders made in the leading judgment.

Appearances:

SIR STEVE ZAKARI ADEHI, (SAN), with him, PROF. JOSEPHINE AGBONIKA (SAN), IBRAHIM ALIYU NASSARAWA, ESQ. and ADEKUNLE TAIYE FALOLA, ESQ. For Appellant(s)

NURENI JIMOH (SAN), with him, IRAHIM IDRIS (SAN), ABUBAKAR N. AHMAD and Z.A. MAIYAKI – the 1st – 1320th Respondents
MAMMAN LAWAN (SAN), with him, ABDUL ADAMU FAGGE and CHAKPO DAUDA – for 1321st – 1323rd Respondents
CHIEF M.N. DURU – for 1324st – 1325th Respondents For Respondent(s)