MR. CHARLES CHUKWUMA EZEANI v. BARR. IKENNA CYPRAIN UZOKWELU & ORS
(2018)LCN/12382(CA)
In The Court of Appeal of Nigeria
On Friday, the 23rd day of February, 2018
CA/E/520/2017
RATIO
FUNDAMENTAL RIGHT: THE ESSENCE OF FAIR HEARING
“The essence of fair hearing is that both parties be given a level playing ground and equal opportunity to be heard. While it is desirable that a Court state the reasons for its conclusion, failure to state the reasons will not perse amount to denial of fair hearing. Failure to consider and make a pronouncement on every fact or point raise will not also amount to a denial of fair hearing. In the instant case, the parties are not in the dark on the reasons for the conclusion of the Court that it has the jurisdiction to adjudicate on the matter placed before it. See BAMAIYI V. THE STATE & ORS. (2001) LPELR 731 (SC) (2001) 8 NWLR (PT. 715) 270, IROLO V. UKA (2002) 14 NWLR (PT. 786) 195 cited IN ADETA V. NIG. ARMY (2016) LPELR 40235 (CA). OJO & ANOR. V FRN (2008) LPELR 5155 (CA). The contention of the appellant that failure of the Court to consider and decide the issue of membership of PDP or APGA amounts to a denial of fair hearing is misconceived.” PER MISITURA OMODERE BOLAJI-YUSUFF,
JURISDICTION: WHETHER JURISDICTION IS DETERMINED BE THE NATURE OF THE PLAINTIFF’S CLAIM
“The law is settled that the jurisdiction of the Court is determined by the nature of plaintiff’s claim as endorsed on the writ of summons or statement of claim where one is filed or any other originating process by which the action is commenced. Where the action is commenced by an originating summons as in the instant case, the reliefs sought and the affidavit in support shall be examined. See JEV & ANOR. V. IYORTYOM & ORS.;ABIA STATE TRANSPORT CORPORATION & ORS . V. QUORUM CONSORTIUM LTD. (2009) LPELR 33 (SC), (2009) 9 NWLR (PT. 1145) 1. SALIK V. IDRIS & ORS. (2014) LPELR 22909 (SC), (2014) 15 NWLR (PT. 1429) 36. EMEKA V. CHUBA-IKPEAZU (2017) 15 NWLR (PT. 1589) 345 AT 370 (B – C).” PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
MR. CHARLES CHUKWUMA EZEANI Appellant(s)
AND
1. BARR. IKENNA CYPRAIN UZOKWELU
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORIAL COMMISSION
4. ANTHONY EGWATU OKAFOR Respondent(s)
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.(Delivering the Leading Judgment):
The 1st respondent in this appeal instituted suit no. FHC/AWK/CS/109/15 against the appellant and 3 others. By an amended originating summons he sought the determination of the following questions and reliefs:
1. Whether having regards to the provisions of Chapter VIII Section 50 (9) and (10) (b) of the Constitution of the 1st Defendant 2012 as amended), Section 87(1) (4) (c) (i) (ii) (9) of the Electoral Act 2010 as amended and Clauses 32 (b) (c) (d) (i), 33 (j), (34) (1) (a) (b) (c) (e) (f) and Clause 50 of the 1st Defendant’s Electoral Guidelines for the primary Elections 2014, the said 1st Defendant can validly nominate the 3rd Defendant on record and/or any other person as its candidate other than the plaintiff who emerged and declared(sic) the winner of the 1st Defendant?s primary Election (special congress) for the 2015 Anambra State House of Assembly, Anaocha II constituency, held in Neni town, the Anaocha II constituency of Anambra State, on the 29/11/2014.
2. Whether having regard to the provisions of Chapter VIII Section 50 (9) and (10) (b) of the Constitution of the 1st Defendant 2012 (as amended) Section 87 (1) (4) (c) (i)(ii) (9) of the Electoral Act 2010 as amended, and Clauses 32 (b) (c) (d) (i), 33 (j), 34 (1) (a) (b) (c) (e) (f) and Clause 50 of the 1st Defendant’s Electoral Guidelines for the Primary Elections 2014, the 2nd Defendant can validly accept and /or receive/ publish the nomination of the 3rd Defendant on record and or /any other person as candidate of the 1st Defendant than the plaintiff who emerged and declared(sic) the winner at the primary election (special Congress) for the 2015 Anambra State of Assembly, Anaocha II Constituency, held in Neni town, the Anaocha Constituency of Anambra State, on the 29/11/2014.
3. Whether having regard to the provision of Chapter VIII Section 50 (9) and (10) of the Constitution of the 1st Defendant 2012 (as Amended), Section 87 (1) (4) (c) (i) (ii) (9) of the Electoral Act 2010 (as amended) and Clause 32 (b) (c) (d) (j), 34 (1) (a) (b) (c) (e) (f) and Clause 50 of the 1st Defendant’s Electoral Guidelines for the Primary Elections 2014, the 1st Defendant can validly substitute the name of the plaintiff on record, Barr. Ikenna Cyprian Uzokwelu with 3rd Defendant, Mr. Charles Ckukwuma Ezeani who was not a member of the 1st Defendant as at the 3rd day of December 2014, let alone participated in the 29/11/2014, for the Anambra State House of Assembly Election Scheduled to take place on the 11/04/2015 and its re – run Election on the 18/04/2015.
4. Whether having regard to the provision of Chapter VIII Section 50 (9) and (10) (b) of the Constitution of the 1st Defendant 2012 (as amended), Section 87 (1) (4) (c) (i) (ii) (9) of the Electoral Act 2010 (as amended) and Clause 32 (b) (c) (d) (i), 33 (j), 34 (1) (a) (b) (c) (e) (f) and Clause 50 of the 1st Defendant’s Electoral Guidelines for the Primary Elections 2014, the 2nd Defendant can validly accept and/or receive/publish the 3rd defendant’s name Mr Charles Chukwuma Ezeani who apparently was in APGA party at the time of the 1st defendant’s primary election (special congress) 2014, for the 2015 Anambra State House of Assembly Election scheduled to take place on the 11/04/2015 and its re- run Election on the 18/04/2015 hence not screened let alone participated in the said 1st defendant’s primary election (special congress) held on the 29/11/2014.
5. Whether the 4th Defendant on record Mr Anthony Egwuatu who emerged as a candidate of the Ejike Oguebego faction of 1st Defendant headed by Chief Chris Uba, can validly and/or lawfully somersault to be the candidate of the National working Committee faction of the 1st Defendant which had different parallel primary Elections (special Congress). On the said 29th November 2014 for Anaocha II Constituency of the Anambra State of House of Assembly Election.
6. Whether having regard to the provisions of Chapter VIII Section 50 (9) and (10) (b) of the Constitution of the 1st Defendant 2012 (as amended), Section 87 (1) (4) (c) (i) (ii) (9) of the Electoral Act 2010 as amended and Clause 32 (b) (c) (d) (i), 33 (j), 34 (1) (a) (b) (c) (e) (f) and Clause 50 of the 1st Defendant?s Electoral Guidelines for the primary Elections 2014, the plaintiff is the nominated candidate of the 1st Defendant primary Election (special congress) for the 2015 Anambra State House of Assembly, Anaocha II Constituency, held in Neni town the Anaocha II Constituency of Anambra State, on the 29/11/2014, primary Election (special congress) hitherto returned and declared winner of the said 1st defendant primary Election as shown in Exhibit E attached to the affidavit evidence.
And upon the 1st, 2nd, 3rd, 4th and 5th questions being answered in negative, the 6th question being answered in the affirmative, plaintiff seeks the following:
RELIEFS SOUGHT:
A. A declaration that the plaintiff, Barr. Ikenna Cyprain Uzokwelu is the only qualified, authentic, duly elected and/ or validly nominated candidate of the 1st Defendant to contest the House of Assembly General Election, for Anaocha II Constituency, of Anambra State scheduled to hold on 11/04/2015 and its re- run election on 18/04/2015.
B. A declaration that 3rd Defendant, Mr Charles Chukwuma Ezeani is not validly nominated as the candidate of 1st defendant for the 2015 Anambra State House of Assembly, Anaocha 11 Constituency of Anambra State scheduled to hold on 11/04/2015 and its re-run election on 18/04/2015.
C. A declaration that the 4th defendant, Mr. Anthony Egwuatu Okafor is the candidate of Ejike Oguebego faction of the 1st defendant headed by Chief Chris Uba hence not the authentic and/or legally recognized candidate of the National Working Committee faction of the 1st defendant.
D. A declaration that the plaintiff, Barr. Ikenna Cyprian Uzokwelu is the authentic candidate of the National Working Committee faction of the 1st defendant in respect of the 2015 Anambra State House of Assembly, Anaocha 11 Constituency of Anambra State scheduled to hold on 11/04/2015 and its re-run election on 18/04/2015.
E. An order of the Honourable Court mandating the 1st defendant to submit and/or forward the name of the plaintiff, Barr. Ikenna Cyprian Uzokwelu as its candidate for 2015 Anambra State House of Assembly Election for Anaocha 11 Constituency to the 2nd defendant forthwith.
G. Injunction restraining the 3rd and 4th defendants, their agents, followers and/or assigns from parading themselves forthwith as the candidates of the 1st defendant for Anambra State House of Assembly 2015, Anaocha 11 Constituency.
The appellant as the 3rd defendant at the Court below filed a preliminary objection to the suit wherein he sought an order to strike out the suit for want of jurisdiction or for the Court to decline to hear the suit upon the originating summons on the grounds that:
(a) the subject matter of the suit does not fall within the purview of the Court’s jurisdiction.
(b) the question of membership of a political party is not justiciable.
(c) the question of conduct of parallel primaries is not justiciable.
(d) the facts in support of the suit are unsuitable for resolution in an originating summons.
Two other parties filed notices of preliminary objection to the suit. All the objections and the substantive suit were heard together.
In a considered judgment delivered by Hon. Justice I.N. Oweibo on 27/1/2017, the appellant’s objection was dismissed. Dissatisfied with the ruling of the Court below, the appellant filed a notice of appeal on 17/7/2017 pursuant to the leave of this Court granted on 10/7/2017. The two grounds of appeal and their particulars are as follows:
GROUND ONE:
The learned trial judge erred in law when, after reviewing the arguments for and against the appellant?s preliminary objection to the justiciablity of the subject matter held:
The preliminary objection of the 3rd defendant is on two flanks. The first is the subject matter jurisdiction. The submissions of the learned senior counsel are very illuminating and persuasive. I will stick to my earlier decision on this issue, that is, that this Court has jurisdiction.
And, therefore, failed to give due consideration to the substance of the objection and wrongly held ?this Court has jurisdiction.
PARTICULARS OF ERROR
(a) The main thrust of the 1st respondent?s (plaintiff at the Lower Court) case revolved around the alleged non-membership of the appellant in the 2nd respondent (Peoples Democratic Party) and the appellant not being a member of the 2nd respondent, could not have been its candidate in the Anambra State House of Assembly, Anaocha 11 State constituency.
(b) The complaints of the 1st respondent, as reflected in the questions for determination and reliefs sought in the originating summons, are political in nature, within the purview of the domestic affairs of the 2nd respondent and beyond the jurisdiction of the Federal High Court.
(c) The decisions of the Supreme Court on the point in decided cases such as ONUOHA V. OKAFOR (1983) 2 SCNLR 244, 257, 260, 265 and ANYANWU V. OGUNEWE (2014) 8 NWLR (PART 1410) 437, 472 – 473, relied on by the appellant, were not applied by the learned trial judge in his decision.
(d) The learned trial judge failed to give due consideration to the contention which would have led him to hold that he had no jurisdiction to hear the suit.
(e) The learned trial judge wrongly assumed jurisdiction to hear the suit and this occassioned a miscarriage of justice to the appellant.
GROUND TWO: The learned judge erred in law when he held, thus:
The second flank is the suitability of the use of originating summons in initiating this suit. It is trite that in determining whether or not the facts in support of the originating summons are contentious, it is the nature of the claim and the facts deposed to in the affidavit in support of the claims that will be examined to see if they disclose disputed facts and a hostile nature of the proceedings. I have carefully considered the case before me, and I believe that there is no substantial dispute of the facts, and so the suit is properly commenced by originating summons.
PARTICULARS OF ERROR
(a) The issue of the membership or non-membership of the appellant in the 2nd respondent (Peoples Democratic Party) or in the All Progressive Grand Alliance (APGA) was a contentious matter which could only be substantiated or disproved by oral and documentary evidence of witness at the trial.
(b) The 1st respondent’s allegation of parallel primary elections (one of which produced him as a candidate and another election which produced the 4th respondent (Anthony Egwuatu Okafor) was a contentions matter with far-reaching implication which could not have been properly resolved through originating summons.
(c) The affidavit evidence of the parties confirms the contentious nature of the issue.
(d) The appropriate mode of initiating the suit should be by writ of summons.
(e) The learned trial judge misconceived the facts/evidence and the state of the law in this regard.
The appellant’s brief of argument was filed on 20/9/17. It was settled by O. G. Adindu. The 1st respondent?s brief of argument was filed on 29/9/2017. It was settled by Chief Dr. E. E. Egbunonu.
The 2nd – 4th respondents did not file any brief of argument.
The appellant raised the following issues for determination:
“(a) Whether the Lower Court was wrong in holding that it had jurisdiction to hear the suit having regard to the questions for determination and the reliefs sought in the suit: Ground One;
(b) Whether the Lower Court was wrong in holding that the facts of the suit were not controversial and suitable for consideration in an originating summons: Ground Two.”
The 1st respondent adopted the two issues raised for determination by the appellant’s counsel. I also adopt the two issues for the determination of this appeal.
On issue 1, appellant’s counsel submitted that the grounds of the objection of the 2nd respondent (PDP) which was overruled by the Court below have no relationship with issues of primaries and/or sponsorship/nomination of a candidate. He further submitted that the Court’s reliance on its ruling on that objection without giving a full and dispassionate consideration to the grounds of the appellant’s preliminary objection when they are not the same as those of the other parties in the case is a denial of fair hearing as the law enjoins a Court to give full and dispassionate consideration to all the issues canvassed before it.
He referred to ATANDA V. AJANI (1989) 3 NWLR (PT. 111) 511 AT 539 (b). ADIGUN V. A. G. OYO STATE (1987) 1 NWLR (PT. 53) 678 AT 721 (G). Counsel submitted that the Court below failed to pay close attention to the evidence in support of the amended originating summons which shows clearly that the 1st respondent by his own showing was a product of a factional party primary election and the existence of factitional primaries takes the matter out of the purview of Section 87 (9) of the Electoral Act. He referred to LADO V. C.P.C (2011) 18 NWLR (PT. 1279) 493, UKACHUKWU V. P.D.P. (2014) 17 NWLR (PT. 1435) 134 AT 182 (D-F). He argued that apart from the fact that the 1st respondent relied on factional primary elections, the 3rd and 4th questions presented for determination cannot be answered by the Court without determining membership of the appellant in PDP or APGA when it has been held severally that Courts do not have the jurisdiction to determine membership of a political party. He referred to ANYANWU V. OGUNEWE (2014) 8 NWLR (PT. 1410) 437. He then submitted that the Court below was wrong to have held that with the coming into effect of Section 87 (9) of the Electoral Act 2010 (as amended) the position of the law in the case of ONUOHA V. OKAFOR (SUPRA) has been modified when the case of the 1st respondent is hinged on the alleged membership of the appellant in APGA. He urged the Court to hold that the decision of the Court below that it has jurisdiction is erroneous.
In response to the above submissions, the respondent’s counsel submitted that the case of the 1st respondent is not predicated on factional dispute but on a day light injustice of imposing non member of the party on the constituency and the act of swapping the 1st respondent with the appellant.
RESOLUTION:
It is on record that the three (3) separate notices of preliminary objection filed by the appellant, 2nd and 3rd respondents were heard and determined together with the substantive matter. The record also disclosed that the 3rd respondent (INEC) also raised objection to the jurisdiction of the Court to entertain the matter. The first ground of that objection was that:
“the subject matter of this suit borders on issue of nomination of candidate by a political party, a non justiciable domestic internal affair of the political party in which there is no complicity alleged against the 2nd defendant.”
On that ground of objection, the Court below held as follows:
“The second prong is that issue bordering on the sponsorship/nomination of candidate in an election is the internal/domestic affairs of the political parties. That is still the law. However with the coming into force Section 87(9) of the Electoral Act 2010 as amended the position of the law in the case of ONUOHA V. OKAFOR (supra) has been modified. Where a political party conducts primaries and a dissatisfied contestant at the said primaries complains about non-compliance by the party with its constitution and guidelines for the election, the Courts have jurisdiction. See PDP VS. SYLVA (2012) ALL FWLR (PT. 637) 606, 634; BOBI VS. AKPODIETE (2013) LPELR 21036) (CA).
The plaintiff in this case who contested in the primary election conducted by the 2nd defendant on 29/11/14 is complaining that the nomination was not done in compliance with the guidelines of the 1st defendant.
On the above the preliminary objection of the 2nd defendant is over ruled and dismissed.”
As earlier stated, grounds 1 and 2 of the appellant’s objection are that the subject matter of the suit does not fall within the purview of the Court’s jurisdiction and that the question of membership of a political party is not justiciable. On those grounds of objection, the Court below rather than repeating its earlier decision on the same issue as raised by the 3rd respondent simply adopted its decision. In my view, the Court below was entitled to and rightly adopted its earlier reasoning and conclusion on similar issue raised by the 3rd respondent rather than engaging in an unnecessary repetition of its reasoning and conclusion. The Court simply refused to fall for whatever dimension(s) both parties decided to introduce to becloud the real issue before the Court which was whether the 2nd respondent’s primary election was conducted in compliance with the Electoral Act, 2010 (as amended) and its own constitution and guidelines and whether the 1st respondent participated in the primary election, scored the highest number of votes cast at the election and ought to have been nominated as the 2nd respondent’s candidate.
The duty of the Court in the determination of a matter before it is to state the reasons for its conclusion in order not to leave the parties in the dark as to how the Court arrived at its decision. See AGBANELO V. UBN LTD. (2000) 7 NWLR (PT. 666) 534, OGBORU & ANOR. V. UDUAGHAN & ORS. (2012) LPELR 8287 (SC). DOMA & ANOR. V. INEC & ORS. (2012) LPELR- 7822 (SC), (2012) 13 NWLR (PT. 1317) 297.
The essence of fair hearing is that both parties be given a level playing ground and equal opportunity to be heard. While it is desirable that a Court state the reasons for its conclusion, failure to state the reasons will not perse amount to denial of fair hearing. Failure to consider and make a pronouncement on every fact or point raise will not also amount to a denial of fair hearing. In the instant case, the parties are not in the dark on the reasons for the conclusion of the Court that it has the jurisdiction to adjudicate on the matter placed before it. See BAMAIYI V. THE STATE & ORS. (2001) LPELR 731 (SC) (2001) 8 NWLR (PT. 715) 270, IROLO V. UKA (2002) 14 NWLR (PT. 786) 195 cited IN ADETA V. NIG. ARMY (2016) LPELR 40235 (CA). OJO & ANOR. V FRN (2008) LPELR ? 5155 (CA). The contention of the appellant that failure of the Court to consider and decide the issue of membership of PDP or APGA amounts to a denial of fair hearing is misconceived.
The law is settled that the jurisdiction of the Court is determined by the nature of plaintiff’s claim as endorsed on the writ of summons or statement of claim where one is filed or any other originating process by which the action is commenced. Where the action is commenced by an originating summons as in the instant case, the reliefs sought and the affidavit in support shall be examined. See JEV & ANOR. V. IYORTYOM & ORS.;ABIA STATE TRANSPORT CORPORATION & ORS . V. QUORUM CONSORTIUM LTD. (2009) LPELR 33 (SC), (2009) 9 NWLR (PT. 1145) 1. SALIK V. IDRIS & ORS. (2014) LPELR 22909 (SC), (2014) 15 NWLR (PT. 1429) 36. EMEKA V. CHUBA-IKPEAZU (2017) 15 NWLR (PT. 1589) 345 AT 370 (B – C).
In the instant case, the crux of the 1st respondent’s case is that he as a member of PDP participated in the primary election held by National Working Committee of the party on 29/11/2014 held in Neni Town to elect PDP’s candidate for the Aniocha 11 Constituency of Anambra State House of Assembly, Anambra State and he scored the highest number of votes cast at the election. However, the name of the appellant who was not a member of PDP and did not participate in the primary election was submitted and accepted by INEC as the candidate of PDP. The main relief sought by the 1st respondent is a declaration that he is the only duly elected and/or validly nominated candidate of the 2nd respondent for Aniocha 11 Constituency of Anambra State House of Assembly in the election scheduled to hold on 11/4/2015 and the re-run election on 18/4/2015 and that the appellant was not the validly nominated candidate of PDP in the election. The appellant admitted that the 2nd respondent held a primary election for the 2015 Anambra State House of Assembly Anaocha 11 Constituency and five candidates, namely Charles Chukwuma Ezeani (appellant), Anthony Egwuatu Okafor (4th respondent), Ikenna Cyprian Uzokwelu (1st respondent), Chukwuneke Obefe and Ugochukwu Duru participated in the election. He, the appellant scored the highest number of votes cast at the election and was returned as the winner of the election.
Thus, it is clear on the affidavits of both parties and exhibit A that they claim to have participated in the same election and the 1st respondent is aggrieved by the nomination of the appellant as the candidate of the party on the ground that his nomination violates Section 87 (1), (3), 4(c) (ii) and (9) of the Electoral Act and PDP’s Electoral Guidelines For the Primary Elections 2014. Those provisions of the Electoral Act have been interpreted in a plethora of authorities. See UGWU V. PDP & ORS. (2015) LPELR 24352 (SC). JEV & ANOR. V. IYORTYOM & ORS. (2014) LPELR 23000 (SC), (2014) 14 NWLR (PT. 1428) 575, DAHIRU & ANOR. V APC & ORS. (2016) LPELR 42089 (SC). LAU V. PDP & ORS. (2017) LPELR 42800 (SC), UFOMBA V. INEC & ORS. (2017) LPELR -42079 (SC).
The authorities are ad idem that by virtue of Section 87 (1) of the Electoral Act, a political party seeking to nominate candidates for elections under the Act must hold primaries for all aspirants to all elective position and where the party adopts direct primaries as the 2nd respondent did in this case, the candidate with the highest number of votes shall be declared the winner of the primaries and his/her name shall be forwarded to the 3rd respondent as the candidate of the party. Where that is not done, the aspirant who is aggrieved by failure to comply with the mandatory provision of Section 87 (4) (c) (ii) has the right to seek redress in Court. That is exactly what the 1st respondent did by approaching the Court to seek redress for his grievances. His claim falls squarely within the purview of Section 87 (9) of the Electoral Act, 2010 (as amended). Thus the Federal High Court has the jurisdiction to hear the 1st respondent’s case. The Court was on a very firm ground when it overruled the appellant’s objection to its jurisdiction. Issue 1 is resolved against the appellant.
Issue 2 is whether the Lower Court was wrong in holding that the facts of the suit were not controversial and suitable for consideration in an originating summons. Appellant’s counsel submitted that Order 3 Rules 6, 7 and 8 of the Federal High Court (Civil Procedure) Rules, 2009 provides an originating summons shall be used where a party seeks construction of a deed, will, enactment or other written instrument and declaration of rights of persons interested in those documents.
On how to determine whether an originating summons is appropriate in a particular case, he referred to GOVT. OF KANO STATE V. EFCC (2016) 17 NWLR (PART. 1540) 149 AT 167 (G), OGUEBEGO V. PDP (2016) 4 NWLR (PT. 1503) 446. Counsel submitted that the allegations that the appellant is a member of APGA not PDP, that there were three parallel factional primary elections and that the appellant did not participate in the primary election are facts seriously in dispute and in respect of which the Court is expected to make findings of facts and determine credibility of witnesses. He referred to OLOYO V. ALAGBE (1983) 2 SCNLR 35 AT 67. He finally submitted that the Court below was wrong in holding that the facts of the suit were not controversial and therefore suitable for consideration in an originating summons.
In response, the respondent’s counsel submitted that where there is documentary evidence from which the Court can settle the conflicts in affidavits there is no point in calling for oral evidence especially when the agitation for oral evidence is made in bad faith and a mischief aimed at aiding the appellant to continue occupying the House of Assembly seat of Anaocha II Constituency which is the res of the instant appeal.
RESOLUTION:
Order 3 Rules 6, 7 and 8 of the Federal High Court (Civil Procedure) Rules, 2009 provide that:
6. Any person claiming to be interested under a deed, will, enactment or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and orders as the Judge deems fit for a declaration of the rights of the persons interested. Where right depends on construction of enactment.
7. Any person claiming any legal or equitable right in a case where the determination of the question whether such a person is entitled to the right depends upon a question of construction of an enactment, may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed.
Discretion of the Judge.
8. A Judge shall not be bound to determine such question of construction if in the Judge’s opinion it ought not to be determined on originating summons but may make such.
By a long line of cases, it is settled that originating summons should be used in a case where facts are not in dispute or are not likely to be in dispute. The procedure should not be used in hostile proceedings where there is a substantial dispute on facts. See KEYAMO V. HOUSE OF ASSEMBLY LAGOS STATE (2002) LPELR ? 1689 (SC). AGI V. PDP & ORS (2016) LPELR 42578 (SC).
In the instant case, there is a dispute as to whether or not the appellant participated in the primary election held by the National Working committee of the 2nd respondent and who scored the highest votes at the election. Those are the two facts which are germane to the determination of the questions presented for determination and the reliefs sought by the 1st respondent. There are conflicts in the affidavits of both parties in respect of those facts. The general principle of law on settlement of conflicts in affidavit evidence is that oral evidence should be called to resolve
23the conflict. However, there are exceptions to the general rule. Those exceptions are:
(1) Where the conflict arising from the affidavit(s) and counter affidavit(s) are not on material issues, it is unnecessary to call for oral evidence. See GBILEVE & ANOR. V. ADDINGI & ANOR. (2014) LPELR 22141 (SC).
(2) Where the conflict(s) can be resolved by authentic documentary evidence before the Court, oral evidence need not be called as the law is settled that documentary evidence should be used as the hanger with which to assess oral evidence. See ATUNGWU & ANOR. V. OCHEKWU (2013) LPELR 20935 (SC). OGAH V. IKPEAZU & ORS. (2017) LPELR 42372 (SC).NWOSU V. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY & ORS. (1990) LPELR 2129 (SC). BOB V. AKPAN & ORS. (2009)LPELR 8519 (CA).
In the instant case, there is abundant documentary evidence on record which can be utilised to resolve the conflicts in the affidavits of both parties.
The Court below rightly held that the suit was properly commenced by originating summons though for a different reason. The law is settled that a correct decision of a trial Court based on a wrong reason would not be disturbed or reversed by the appellate Court since its concern is whether or not a decision is correct and not whether or not the reasons for it are correct. For the above reasons, issue 2 is resolved against the appellant.
In conclusion, this appeal fails as it lacks merit. It is hereby dismissed. There shall be N100,000 (One Hundred Thousand Naira) costs in favour of the 1st respondent against the appellant.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the erudite judgment just delivered by my learned brother HON. JUSTICE MISITURA OMODERE BOLAJI-YUSUFF, JCA. The judgment exhaustively dealt with and to my satisfaction all the issues thrown up for determination. I have nothing useful to add. I also abide by the order as to costs.
TOM SHAIBU YAKUBU, J.C.A.: The opinion rendered on this appeal by the HON. JUSTICE MISITURA OMODERA BOLAJI-YUSUSFF, JCA., fully represents my thoughts on the appeal. I, too dismiss the appeal as having no onions.
I, adopt the award of N100,000.00 costs in favour of the 1st respondent and against the appellant, contained in the lead judgment, as mine.
Appearances:
J. T. U. Nnodum, SAN with him, O. G. AdinduFor Appellant(s)
Dr. E. E. Egbunonu with him, A. N. Okoye, A. N. Dioha and F. U. Ndianekwute for 1st Respondent.
Echezona Etiaqba with him, K. O. Aroh, Chimezie Ezechukwu and G. A. Nwoku for the 2nd Respondent.
S. I. Ezeokenwa with him, C. O. Igboanuzue for 3rd Respondent.
Martin Obi for 4th Respondent.For Respondent(s)
