RT. HONOURABLE EKPERIKPE EKPO v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2013)

RT. HONOURABLE EKPERIKPE EKPO v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS

(2013)LCN/6721(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 26th day of March, 2013

CA/C/231/2011

RATIO

WHETHER IT IS COMPETENT FOR A COURT SUO MOTU TO MAKE A CASE FOR EITHER OR BOTH PARTIES AND PROCEED TO GIVE JUDGMENT ON SAME CONTRARY TO THE CASE OF THE PARTIES BEFORE THE COURT

The law is also well established that it is not competent for any Court suo motu to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before it. See COMMISSIONER FOR WORKS, BENUE STATE AND ANOR V. DEVCON DEVELOPMENT CONSULTANTS LTD. (1988) 3 NWLR (pt. 83) 407. NIGERIAN HOUSING DEVELOPMENT SOCIETY LTD AND ANOR V. MUMINI (1977) 2 SC 57, ADENIJI V. ADENIJI (1972) 1 All NLR (pt. 1) 298, A.C.B. LTD. V. NORTHERN NIGERIA (1967) NMLR 231.

There can be no doubt that courts of law have the power to raise suo motu relevant issue or issues which are not before the court for the determination of the case. In exercising this power, however, the court must adhere strictly to the principles of natural justice and in particular, to the audi alteram partem rule. Accordingly, the law is also well settled that on no account should a court raise a point or issue suo motu no matter how clear it may appeal to be, and then proceed to resolve it one way or the other without inviting the parties to address it on the point. If it does so, it will be in flagrant abuse and breach of the aggrieved party’s right to fair hearing as entrenched in the Constitution. See UGO V. OBIEKWE (1989) 1 NWLR (pt 99) 566, OJE V. BABALOLA (1991) 4 NWLR (Pt. 185) 267. In other words, when a court for any compelling reasons finds it necessary and particularly in the interest of justice, to raise a point or issue suo motu, the parties must be given an opportunity to be heard on such point or issue, particularly the party that may be prejudiced as the result of the point raised suo motu See EJOWHOMU case supra, ADEGOKE V. ADIBI (1992) 5 NWLR (Pt. 242) 410, ATANDA V. LAKANMI (1974) 3 SC 109, ODIASE v. AGHO (1972) 1 All NLR (pt. 1)76:

See also Stirling Civil Engineering (Nig) Ltd V. Yahaya (2005) 4 S.C. 124. Per ONYEKACHI A. OTISI, J.C.A.

JUSTICES

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

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

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

Between

1. RT. HONOURABLE EKPERIKPE EKPO Appellant(s)

AND

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. PEOPLE?S DEMOCRATIC PARTY
3. SENATOR ALOYSIUS ETOK Respondent(s)

ONYEKACHI A. OTISI, J.C.A. (Delivering the leading Judgment): This appeal is against the Judgment of the Federal High Court, Uyo. The Appellant was a candidate in the People’s Democratic Party primary election for the Ikot Ekpene Senatorial position held on 7th January, 2011. He alleged that the said primary election did not hold as lawfully provided; and, as plaintiff, he commenced, by way of originating Summons, suit No FHC/ABJ/CS/123/2011 of Federal High Court, Abuja. The matter was subsequently transferred to Federal High Court Uyo, where it became FHC/UY/CS/139/2011. The Appellant sought the determination of the following questions:
1. Whether by virtue of the provisions of section 87 (3), (9) and (10) of the Electoral Act 2010, Article 17.1 the Peoples Democratic Party Constitution 2009 (as amended) and the provisions of Articles Part v 24 to 33 of the Electoral Guidelines for Party Elections 2010 of the Peoples Democratic Party (hereinafter referred to EGPE) the Applicant herein was not legally entitled to participate in the Senatorial Election Primaries for Ikot Ekpene Senatorial District held on Friday, 7th January 2011 at Ikot Ekpene Township Stadium, Akwa Ibom State.
2. Whether by virtue of the Provisional Clearance certificate with number 0000593 dated 31-12-2010 signed by the Chairman and Secretary of the Screening Committee respectively, the Plaintiff herein was not entitled to exercise his right to participate in the Ikot Ekpene Senatorial District Election Primaries in Akwa Ibom State as guaranteed by Article 27 (V) of the Electoral Guidelines for Primary Elections 2010 of the PDP.
3. Whether in view of prayers 1 and 2 above, the 2nd to 3rd defendants were lawfully entitled to EXCLUDE the plaintiff from participating in the said Senatorial Election Primaries in Akwa Ibom State.
4. Whether by virtue of prayers 1, 2 and 3 above, the Senatorial Primary Election purportedly held on 7th January 2011 can be said to have satisfied the requirement of Part V of EGPE 2010 to merit validity.
And upon the determination of these questions, the Appellant sought the following reliefs:
1. A DECLARATION that the Senatorial Election Primaries of the PDP in Akwa Ibom State purportedly held on 7th January 2011 at Ikot Ekpene Township Stadium was illegal, null, void and of no effect whatsoever because the Plaintiff herein being an aspirant was legally entitled to participate therein, was UNLAWFULLY EXCLUDED completely from the process thereby depriving him of the right to be voted for by the delegates who supported him.
2. AN ORDER setting aside the Senatorial Election Primaries for Ikot Ekpene Senatorial District of Akwa Ibom State held on 7th January 2011 at Ikot Ekpene Township Stadium.
3. AN ORDER OF PERPETUAL INJUCTION restraining the 2nd defendants from forwarding the name of the purported Senatorial Primary Election for Akwa Ibom State allegedly held on Friday, 7th January 2011 at Ikot Ekpene Township Stadium, Akwa Ibom State pending the determination of the substantive suit.
4. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st defendant from receiving, accepting or in any way acting upon any nomination of any person, particularly the 3rd defendant herein purportedly elected at the aforementioned primaries pending the determination of the substantive suit.
5. AN ORDER OF PERPETUAL INJUNCTION restraining the 3rd defendant from parading himself as the duly nominated candidate and making, taking, continuing or resuming any steps, attempts, arrangement and preparations to undertake or carry out any function, task or act pursuant to the result of the aforementioned Primaries pending the determination of the substantive suit.
6. AN ORDER nullifying all acts, tasks and, function purportedly performed during and after 7th January 2011 by the 3rd defendant pursuant to the results of the purported primaries aforementioned.
7. AN ORDER compelling the 2nd defendant herein to comply with section 87 (3), of the Electoral Act 2010, Part V. Articles 24 to 33 of the EGPE.
8. AN ORDER compelling the 1st defendant herein to comply with section 87 (9) of the Electoral Act 2010.
9. Such further Order or other Orders as this Honourable Court may deem fit to make in the circumstance.
In the support of the originating summons was an affidavit deposed to by the Appellant. The 2nd respondent filed a counter affidavit to the originating summons. The 3rd Respondent filed a Notice of Preliminary Objection, and a counter affidavit to the originating summons. The 2nd Respondent had identified with the preliminary objection, while the Appellant reacted to it and also filed further and better affidavit in support of the originating summons. The originating summons and the preliminary objection were argued together, after which the learned trial trudge, in a considered Judgment struck out the suit of the Appellant, concluding as follows:
“The 1st and 2nd Defendants have averred that 3rd Defendant won the primary election. That primary election was free and fair. This averment cannot be challenged even by plaintiff, because by its (sic) own averment he left the venue of the primary elections for safety. He was therefore not present when primary elections were concluded. It then follows that the allegation of non compliance with the provisions of the electoral law and guidelines of the 2nd Defendant is of no moment.
Consequently, in as much as the Plaintiff left venue of primary election before the election took place, did not deny the averments of 1st and 2nd Defendants that election took place, that he Plaintiff and other aspirant stepped down for 3rd Defendant etc and the 3rd Defendant is the winner of the election by Exhibit C and Exhibit A annexed to Plaintiffs Counter affidavit and 2nd Defendant’s counter to Originating Summons respectively, this suit is improper thus robbing this Court of its jurisdiction. Under Section 138 of the Electoral Act, unlawful exclusion is one of the grounds upon which an election may be questioned.
The Plaintiff complains of unlawful exclusion from participating in the senatorial elections. This court lacks the jurisdiction to grant plaintiff its reliefs. The appropriate Court is the election tribunal.
Accordingly, suit is strike (sic) out for lack of jurisdiction.”
The trial court then made the following orders:
1. That this court lacks the jurisdiction to grant plaintiff’s relief.
2. That the appropriate Court is the Election Tribunal.
3. That suit is accordingly struck out for lack of jurisdiction.
The Appellant, dissatisfied, filed a Notice of Appeal in which he raised 5 Grounds of appeal, and sought the following reliefs:
1. To allow the Appeal.
2. To set aside the entire decision of the Trial Court; and,
3. To enter judgment in favour of the Appellant in the Court below.
The Appellant’s Brief of Argument was filed on 1/11/2011 by J.O. Asoluka, Esq. 1st Respondent’s Brief was filed by Jacob Akpong, Esq., on 22/2/2012 but deemed on 15/3/2012. 2nd Respondent’s Brief was filed by Da. David Okokon, Esq., on 22/2/2012 but deemed on 15/3/2012. 3rd Respondent’s Brief was filed by Samuel Ikpo, Esq., on 15/2/2012 but deemed on 22/2/2012. These Briefs were adopted by respective Counsel on 13/2/2013.
For the Appellant, 4 Issues were formulated for determination as follows:
ISSUE ONE
a. Whether the Learned Trial Court was right in declining jurisdiction to grant the reliefs sought by the plaintiff when the plaintiff’s case is a pre-election matter brought in accordance with the provision of section 87 (1) (2) (3) (9) (10) of the Electoral Act 2010 as amended and the Electoral Guidelines for Primary Elections 2010 of the Peoples Democratic Party. (GROUNDS ONE AND TWO).
ISSUE TWO
b. Whether the Learned Trial Court was right in fatling to consider the material conflict in the purported results of the primary election as exhibited by the 2nd Defendant/Respondent, the Delegate List for the Primary Election, which gave birth to the said result (GROUND THREE).
ISSUE THREE
c. Whether the Honourable Trial Court was right in failing to order for pleadings, upon finding that Originating Summons procedure was not proper in commencing plaintiff’s action. (GROUND FOUR).
ISSUE FOUR
d. Whether there was a proper consideration and evaluation of the Plaintiff’s supporting affidavit, further affidavit and better and further affidavit in support of the originating Summons by the Trial Court (GROUNDS FIVE).
The 1st Respondent formulated 2 Issues for determination as follows:
ISSUE NO 1
Whether the trial court had jurisdiction to hear and determine the matter being commenced by improper procedure in the eye of the law.
ISSUE NO. 2
Whether the trial court was right to have struck out the matter for want of jurisdiction.
The 2nd Respondent and 3rd respondent both adopted the 4 issues raised by the Appellant for determination. The issues raised overlap. The Issues raised by the 1st Respondent are subsumed in Issues No 2 and 3 raised by the Appellant. I shall adopt the Issues formulated by the Appellant, considering Issue No 2 and Issue No 4 together.
Issue No 1.
Whether the Learned Trial Court was right in declining jurisdiction to grant the reliefs sought by the Plaintiff when the Plaintiff’s case is a pre-Election matter brought in accordance with the provision of section 87 (1) (2) (3) (9) (10) of the Electoral Act 2010 as amended and the Electoral Guidelines for Primary Elections 2010 of the Peoples Democratic Party. (GROUNDS ONE AND TWO).
Learned Counsel for the Appellant submitted that jurisdiction is the authority which a court has to decide on matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. Such authority of the court being controlled or circumscribed by the statute creating the court itself or it may be prescribed as a condition precedent. He submitted that the nomination of candidates for the general election by political parties, withdrawal and substitution are pre-election matters, which are to be ventilated either in the State High Court or in the Federal High Court by virtue of Section 31(5) and Section 87(10) of the Electoral Act 2010 as amended. He further submitted that improper nomination of a candidate contrary to the provisions of the Electoral Act has been held to be a Pre-election matter, and not within the jurisdiction of an Election Petition Tribunal; relying on Chime v. Onyia (2009) 2 NWLR (PT 1124) 1 at 72-73: Amaechi v. INEC (2008) 5 NWLR (PT 1080) 227: Ararume v. INEC (2007) 9 NWLR (PT 1038) 127. It is submitted that the grounds recognized for the purpose of presenting an election petition are acts or omissions that are contemporaneous with the conduct of the election. But that an Election Tribunal has no jurisdiction to investigate matters that took place before the conduct of the election. He relied on ANPP v. Usman (2008) 12 NWLR (pt 1100) 1 at 55; Ibrahim v. INEC (1999) 8 NWLR (pt 614) 334; and Section 285(1) (a) of the 1999 Constitution of the Federal Republic of Nigeria as amended.
He further submitted that an election is different and distinct from the Process of nomination of candidates for election by political parties. That only a regular court is vested with jurisdiction to hear and determine the issue of nomination of a candidate which is a pre-election issue. He submitted that the substratum of the Appellant’s case was that he was excluded from participating of the primary election of the People’s Democratic Party for the nomination of candidate for the Akwa-Ibom North West Senatorial District, which election was inconclusive but the 3rd Respondent was returned as a consensus candidate contrary to the provisions of Section 87(1) (2), (3), (9), and (10) of the Electoral Act 2010 as amended: and the People’s Democratic Party Guideline for Primary Elections 2010. He relied on the provisions of Section 87 of the Electoral Act to submit that holding of primary elections by political parties for nomination of candidates for election under the Electoral Act 2010 for elective positions is compulsory and mandatory. Further relying on Adams v. Umar (2009) 5 NWLR (PT 1133) 41: Kwara v. Innocent (2009) 1 NWLR (PT 1121) 179, and State v. Anibijuwon 11 (2009) 1 NWLR (PT 1123) 597. Mr. Asoluka for the Appellant submitted that the 2nd Respondent never held a primary election for the nomination of the 3rd Respondent. He relied on Section 87(10) to submit that the Appellant’s action was justiciable and that the lower court had jurisdiction to entertain it. That the lower court erred in striking out the suit on the ground that his complaint was based on the exclusion from the main election, which is Section 138(d) of the Electoral Act 2010 as amended. He also cited and relied on Uche v. Onwe (2011) 4 NWLR (PT 1237) 385 at 425: Kolawole v. Folusho (2009) 8 NWLR (PT 1143) 338 at 384; Adeogun v. Fashoghon (2008) 17 NWLR (PT 1115) 149. He urged the Court to rely on these decisions of this Court and of the Supreme Court, on the doctrine of stare decisis and set aside the decision of the lower court declining jurisdiction and striking out the plaintiff’s case.
He also submitted that none of the parties raised the issue of Section 138 of the Electoral Act 2010 as amended. But that the trial court had raised it suo moto, failed to invite parties to address on some before relying on the provisions to strike out the suit for want of jurisdiction. The Court is urged to set aside the decision, relying on Shasi v. Smith. (2009) 18 NWLR (PT 1173) 330 at 346.
The reply, the 1st, 2nd and 3rd Respondents conceded that the lower court has jurisdiction to entertain and determine a pre-election matter. They further submitted that the procedure adopted by the Appellant in ventilating his grievance was wrong, and that the lower court was therefore right in declining jurisdiction.
The parties, from the submissions of respective Counsel for the 1st, 2nd and 3rd respondents are ad idem on the submission that Election Petition Tribunals have no jurisdiction to hear pre-election matters such as matters relating to party primaries. Rather, it is the State or FCT High Court or the Federal High Court that is vested with jurisdiction to entertain pre-election matters. This is indeed the position of the law. See: Odedo v. INEC (2008) 10 MJSC 1; Ucha v. Onwe (2011) 1 MJSC (pt 11) 52: Section 285(1) of the 1999 Constitution of the Federal Republic of Nigeria. The lower court therefore had jurisdiction to hear a Pre-election matter submitted to it for adjudication.
The lower court went beyond this issue to consider Section 138 of the Electoral Act, which provides grounds upon which on election maybe questioned. Section 138(d) provides that the unlawful exclusion from the election of a petitioner or a candidate, who had been lawfully nominated, is a ground for challenging an election. The trial court then concluded thus:
“Under Section 138 of the Electoral Act, unlawful exclusion is one of the grounds upon which an election may be questioned.
The Plaintiff complains of unlawful exclusion from participating in the senatorial elections.
This court lacks the jurisdiction to grant plaintiff its reliefs. The appropriate Court is the election tribunal.”
Learned Counsel for the Appellant has rightly submitted that the trial court raised this issue suo motu and made its decision. None of the parties had raised this issue before the learned trial court; and this was not the scenario that brought the Appellant to the trial court.
On an issues being raised suo motu by a court, the Supreme Court, per Dahiru Musdapher JSC (as he then was) said in Kraus Thompson Organisation Ltd. V. University of Calabar (2004) 4 S.C. (PT. I) 65:
“Now, it is settled law that when an issue is not placed before a Court, such court has no business whatsoever to deal with it as decisions of a Court of Law must not be founded on any ground in respect of which it has neither received argument from or on behalf of the parties before it nor even raised by or for the parties or either of them. See SHITTA BEY V. FPSC (1981) 1 SCNCLR 372, SAUDE V. ABDULLAHI (1898) 4 NWLR (pt. 116) 387.
The law is also well established that it is not competent for any Court suo motu to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before it. See COMMISSIONER FOR WORKS, BENUE STATE AND ANOR V. DEVCON DEVELOPMENT CONSULTANTS LTD. (1988) 3 NWLR (pt. 83) 407. NIGERIAN HOUSING DEVELOPMENT SOCIETY LTD AND ANOR V. MUMINI (1977) 2 SC 57, ADENIJI V. ADENIJI (1972) 1 All NLR (pt. 1) 298, A.C.B. LTD. V. NORTHERN NIGERIA (1967) NMLR 231.

However, it is not every error or mistake that will cause reversal of a decision on appeal. Such reversal shall only be effected where there has been a miscarriage of justice occasioned by the act of the lower court. There is miscarriage of justice only where there are substantial errors in the adjudication, with the resultant effect that the party relying on such errors may likely have judgment in his favour.
But, where it is not shown that the decision reached is prejudicial or inconsistent with the substantial rights of a party, then there is no miscarriage of justice or failure of justice. See: Kraus Thompson Organisation Ltd V. University of Calabar (supra).
Although the trial court had raised and decided the issue Section 138 suo motu, the Appellant has not shown that the decision reached was prejudicial to him in the circumstance of this case. Therefore no miscarriage of justice has been occasioned.
Issue No 2
Whether the Learned Trial Court was right in falling to consider the material conflict in the purported results of the primary Election as exhibited by the 2nd Defendant/Respondent, the Delegate List for the Primary Election, which gave birth to the said result (GROUND THREE).
Issue No. 4
Whether there was a proper consideration and evaluation of the Plaintiff’s supporting affidavit further affidavit and better and further affidavit in support of the Originating Summons by the Trial Court (GROUND FIVE).
Learned Counsel for the Appellant submitted that when a suit is commenced by Originating Summons as in the instant case, the affidavit in support of the summons and the counter affidavit in opposition take the place of pleadings for the purpose of determining the action, relying on Orji vs. D.T.M. (Nig.) Ltd (2009) 18 NWLR (PT 1173) 467. He also referred to averments in the supporting affidavit, as well as, averments in the counter affidavit of the 2nd Respondent and of the 3rd Respondent. He further submitted that the learned trial court failed to consider averments in his further and better affidavit and Exhibits annexed as A and C, which show the list of delegates. Exhibit A had a delegate list of 1997 delegates while Exhibit C, showed votes cost as being 2177, being 180 votes higher than the number of delegates, contrary to the provisions of Section 31(f) of the 2nd Respondent’s Electoral Guidelines for Primary Election 2010. He also referred to Exhibit FFAB2, the Result sheet certified by the 2nd defendant, annexed to the further and better affidavit of the Appellant, which showed 2380 as the number of accredited delegates though the 2nd respondent’s list of accredited delegates is 1997. That these conflicts are contrary to section 31(f) of the 2nd Respondents Electoral Guidelines for Primary Election 2010 and to section 53 (2) of the Electoral Act 2010. He submitted that the trial court failed to consider these conflicts, which he contended would show that there was no primary election as required by law, held on 7th January, 2011 for the Ikot Ekpene Senatorial Position. The Court is urged to invoke the provisions of Section 87(9) of the Electoral Act as amended and disqualify the 3rd Respondent.
Learned Counsel for the Appellant invited the Court to examine the delegates list, which reveals that the name of the Appellant was excluded from the delegates list, and which shows that he was excluded from the primary election, although duly given clearance to participate in “the primary election. He submitted that the trial court failed to consider the admission of the 3rd Respondent that he was; a consensus candidate as shown in Exhibit FAB1. That Exhibit: FAB1 shows there was no primary election as required by law, and that the 3rd Respondent was forced on the other aspirants as a consensus candidate. That facts admitted need no other proof. He relied on Jolasun v. Bamgboye (2010) 8 NWLR (PT 1225) 285 at 307.
On Issue No 4, it is submitted for the Appellant that the trial court failed to properly consider and evaluate the evidence was found in the affidavits of the parties before it; and as a result, certain findings made were wrong. He submitted that the failure to consider the averments in the Appellant’s affidavits occasioned a miscarriage of justice. Court is urged to resolve these issues in favour of Appellant.
For the 1st Respondent, it is submitted that originating summons cannot be used to commence an action where there are contentious issues bordering on fraud and irregularities; relying on Pam v. Mohammed EPR 5 (2009) 298, 299. Learned Counsel for the 1st Respondent also relied on Buhari v. Obasanjo (2005) 13 NWLR (PT 941) 1 to submit that the crux of the Appellant’s complaints, being founded on allegations of fraud and irregularities committed during the election primaries conducted by the 2nd Respondent and observed by the 3rd Respondent, the evidence required to arrive at the justice of the matter was not affidavit evidence: and that in the light of the averments of the Appellant, the trial court was right to have declined jurisdiction.
For the 2nd Respondent, it is submitted that the trial court was right not to have considered the material conflict in the purported result of the primary election since the Appellant had alleged irregularities that bordered on fraud, which amounts to criminal allegation, that such issues cannot be decided on affidavit evidence: relying on Pam v. Mohammed EPR 5 (2009) 298, 299: Buhari v. Obasanjo (supra). On Issue No 4, it is submitted for the 2nd respondent that the trial court had properly evaluated the affidavit evidence before it.
The 3rd Respondent also submitted that the trial court was right not to have dabbled into resolving conflicts in the results of the primary election, as the criminal allegations of the Appellant cannot be resolved on affidavit evidence.
Learned Counsel also relied on Buhari v. Obasanjo (supra). Learned Counsel for the 3rd Respondent adopted his argument on Issues 1 and 2, and urged the Court resolve same against the Appellant. He further submitted that the Appellant ought to file his suit afresh under the right procedure, as the suit was not dismissed.
The nature of originating summons has been very well enunciated in a number of legal authorities. On the nature of originating summons, the Supreme Court, per Onnoghen JSC in Dapianlong V. Dariye (2007) 8 MJSC 140, (2007) 4 S.C. (pt. III) 18 said:
“The originating summons procedure is a means of commencement of action adopted in cases where the facts are not in dispute or there is no likelihood, of their being in dispute and when the sole or principal question in issue is or is likely to be one directed at the construction of a written law, Constitution or any instrument or of any deed, will, contract or other document or other question of law or in a circumstance where there is not likely to be any dispute as to the facts. In general terms, it is used for non-contentious actions or matters i.e. those actions where facts are not likely to be in dispute, in actions commenced by originating, summons, pleadings are not required rather affidavit evidence are employed; see Director, State Security Service v. Agbakoba (1999) 3 NWLR (Pt. 595) 314: Din v. A-G of the Federation (1986) 1 NWLR (Pt. 17) 471: Keyamo v. House of Assembly Lagos State & Ors (2002) 18 NWLR (Pt. 799) 605.”
In Famfa Oil Limited v. Attorney-General of the Federation (2003) 18 NWLR (Pt. 852) 453 Belgore JSC, (as he then was) said of page 467;
“The very nature of an originating summons is to make things simpler for hearing. It is available to any person claiming interest under a deed, will or other written instrument whereby he will apply by originating summons for the determination of any question of construction arising under the instrument for a declaration of his interest. (Order 38 rule 1 and Order 44 rule 1L). It is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the dealings of the parties to the suit. In such a situation, there is no serious dispute as to facts but what the Plaintiff is claiming is the declaration of his rights. If there are serious disputes as to facts then a normal writ must be taken out and not originating summons; Doherty v. Doherty (1968) NMLR 241. In matters where facts are not in issue the originating summons, which must be supported by an affidavit of the facts must be taken out and will become operative once a Judge in chambers has signed it thus giving direction for its service.”
In Oba Osunbade V. Oba Oyewunmi 30 NSCQR 434 at 449 the Supreme Court per Ogbuagu JSC said:
“It is now firmly settled that an Originating Summons, is an unusual method of commencing proceedings in the High Court and it is confined to cases where special statutory provisions exist for its application. It is not advisable, to make use of this procedure for hostile proceedings where the facts are in dispute as in the instant case leading to this appeal.”
See also: Inakoju v. Adeleke (2007) CLR 1(f) (SC), (2007) 2 MJSC 1: Peters-Pam v. Muhammed (2008) CLR 5(i) (SC), (2008) 9 MJSC 117, FGN v. Zebra Energy (Nig.) Limited (2002) CLR 12(a) (sc), (2003) 1 MJSC 3.In actions commenced by originating summons, only affidavit evidence is employed. An examination of the affidavit evidence which the trial court was confronted with is instructive.
I shall reproduce crucial averments in the affidavit filed in support of the originating summons, found at Page 6 of the Record of Appeal, wherein the Appellant had stated thus:
“I Rf. Hon. Ekperikpe Ekpo, Drive 6, House 76, Prince and Princess Estate, Abuja do hereby make Oath and swear as follows:
41. That I am the Plaintiff in this suit and by virtue of my position, I am conversant with the facts of this case.
42. That facts deposed herein are within my personal knowledge except where otherwise stated.
43. That I had earlier deposed to an affidavit in this matter.
44. That I am a member of the 2nd defendant herein.
45. That now shown to me and marked exhibit A is a copy of my membership card.
46. That I am presently serving in the House of Representative as a member representing Abak/Etim Ekpo/Ika Federal Constituency of Akwa Ibom State.
47. That I expressed the intention of contesting the Ikot Ekpene Senatorial position and after satisfying all Procedural requirements as set out in the Electoral Guidelines for the Primary Elections 2010 of the Peoples Democratic Party (hereinafter referred to as EGPE). I was accordingly issued with a Provisional
Clearance Certificate number 0000593 dated 31-12-2010 in confirmation of my eligibility to contest the Senatorial Primaries.
48. That now shown to me and marked Exhibit B is a copy of the said certificate.
49. That the Senatorial Primaries was scheduled to hold on the 7th of January 2011 at the Ikot Ekpene Township Stadium.
50. That the exercise was marred by several irregularities that were inconsistent with the applicable Electoral Guidelines.
ACCREDITATION
51. That out of the ten (10) Local Governments that make up the Ikot Ekpene Senatorial District, only five were duly accredited. These are: Ikot Ekpene, Essien Udim, Obot Akara, Ikono and Ini Local Government Area. These accredited Federal Constituencies are in Ikot Ekpene zone.
52. That the other five Local Government Area in Abak zone: Abak, Etim Ekpo, Ika, Oruk Anam, Ukanafun were left out of the accreditation exercise while voting was going on.
53. That the Moderator on that day at the Election venue repeatedly told the delegates that the party hierarchy has adopted the third defendant herein as the consensus candidate.
54. That the Akwa Ibom Radio station (AKBC) repeatedly told the listening public on 5th/6th January 2011 that the Annang Elders in a meeting attended by Governor Godswill Akpabio had agreed with the top party chieftains to allow the 3rd defendant herein to serve a second term.
55. That what this portends is that a winner had already been declared even before the ‘election’ was concluded.
56. That even in the likely event of a sole candidate, the Electoral Guideline stipulates that there ought to still be an Election Process where all accredited delegates vote to endorse or adopt a consensus candidate.
57. That during the actual voting which started with Essien Udim L.G.A. instead of the alphabetical order of Abak L.G.A. delegates were intimidated and harassed and the exercise was nothing but a fraud as delegates were not allowed to vote candidates of their choice but were screened before casting their votes info the ballot box after ascertaining the vote is for 3rd defendant herein. When my agent complained, he was restrained.
58. That on the day of the voting, camera men were only allowed to capture when Governor Akpabio was casting his vote. After him, they were forbidden to film or snap all other activities at the venue. This was to prevent then getting evidence of the true situation that transpired.
59. That in the light of the above, if was very clear that the democratic expression of the power of the votes by the delegates through the ballot box was violated and that nothing credible was going to come out of the exercise.
60. That when it became obvious that I was no longer safe at the venue of the Election. I took my exit at about 9.00p.m for safety.
61. That the delegates from Abak Federal Constituency were asked to move in for accreditation after my exit. This however did not work out as they were prevented from passing through the gate by unidentified persons. This resulted in violence which drew the attention of the chairman of the Electoral panel who for security reasons suspended the proceedings of the Election till the following day. The entire primary Election came to a close with only delegates from Essien Udim voting.
62. That after my departure the 3rd defendant herein was declared the consensus candidate and winner for an Election that never took place.
63. That the exercise was an “arrange election” and short of democratic procedures as it was not free and fair.”
These averments not only allege fundamental irregularities and fraud in the conduct of the primaries in issue, but go further to conclude that on election, property so called, never took place. The 3rd Respondent was merely named a consensus candidate. These allegations were vehemently denied by the 1st, 2nd and 3rd Respondents.
Section 135 of the Evidence Act 2011, (Section 137 of the Evidence Act of 1990), provides that:
“(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provisions of Section 139, on the person who asserts if, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.”
Section 135(1) of the Evidence Act insists on proof beyond reasonable doubt irrespective of the fact whether or not the proceedings are criminal or civil, once it is established that the commission of a crime by a party to such proceedings is directly in issue.
The primaries were conducted by the 2nd Respondent with the 3rd Respondent declared as the winner. The Appellant dismissed the primaries in issue in these scathing words:
“the exercise was nothing but a fraud”.
These are very weighty and serious allegations. A party in a civil matter, who has alleged fraud, must be able to prove the allegations. The commission of these alleged irregularities and fraud as alleged by the Appellant, are facts directly in issue; and, the Appellant has the burden of proving these allegations.
See also Ogbu v. Nnaji (1999) 4 NWLR (Pt. 597) 87.
But, the question is this: can the Appellant really convincingly discharge this burden on mere affidavit evidence? I do not think so. The Appellant should present his evidence formally by oral and documentary: and, the Respondents, who have denied these allegations, should be given the opportunity to cross-examine the Appellant and his witness or witnesses. I believe that this is the acceptable judicious manner of resolving all conflicts in the affidavit evidence. Any mode short of this, cannot resolve satisfactorily the conflicts in the affidavit evidence of the parties. See also: Nwankwere v. Adewunmi (1967) NMLR 45 at P.48; Omorhirhi V. Enatevwere (1988) 1 NSCC 511. I therefore resolve Issue No 2 and Issue No 4 against the Appellant.
Issue No 3.
Whether the Honourable Trial Court was right in failing to order for pleadings, upon finding that originating summons procedure was not proper in commencing plaintiff’s action.
(GROUND FOUR).
Learned Counsel submitted that the form of commencement of an action does not make it incompetent.
That the trial judge ought to have ordered pleadings in the interest of justice and in order to do substantial justice to the Appellant’s case if the court found that originating Summons was an improper way to commence this action. He relied on Inajoku vs. Adeleke (2007) 4 NWLR (PT 1025) 423. That failure to order for pleadings amounted to placing technicality above doing substantial justice, which courts are enjoined to avoid; relying on Adams vs. Umar (2009) 5 NWLR (PT 1133) 41 at 131 – 132.
For the 1st Respondent, it is submitted that in view of the affidavit evidence of the Appellant, the Appellant’s viable option would have been to commence this action afresh through the use of writ of summons, since the evidence required to arrive of the justice of the matter was not affidavit evidence. And, that the lower court was right to have struck out the matter.
For the 2nd respondent, it is similarly submitted that the proper procedure to adopt is by way of writ of summons and not by originating summons. That the trial court, having considered the averments of the Appellant and the preliminary objection of the 3rd Respondent, was right to have struck out the matter, as it had no jurisdiction to hear the suit commenced by a wrong procedure.
It is also submitted for the 3rd Respondent that the trial court was right to have struck out the case having held that it had no jurisdiction to entertain a suit brought under a wrong procedure, relying on Inajoku v. Adelekte (supra).
As has been well articulated above, where there is likely to be substantial dispute of facts, the suit ought to be brought by writ of summons for the dispute to be properly determined.
Similarly, when the relief or reliefs sought by a claimant are declaratory in nature, the action must be brought by writ of summons, the facts being in disputed.
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 for a declaration of the rights of the persons interested.
7. Any person claiming any legal or equitable right in a case where the determination of the question whether such a person is entitled to the right depends upon a question of construction of an enactment, may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed
8. A judge shall not be bound to determine any such question of construction if in the Judge’s opinion if ought not to be determined on originating summons but may make such orders as the Judge deems fit.
These Rules evidently do not provide for the originating summons procedure to be employed where the complaint of the plaintiff makes allegations against a defendant which require oral evidence and an opportunity for the defendant to cross-examine witnesses testifying against him. This is more so when the allegations border on fraud. The Appellant therefore commenced this action by a procedure that does not permit a comprehensive ventilation of the matters in controversy to ensure justice for the parties – both the Appellant (complainant) and the Respondents (accused). I agree with the Appellant however that in this circumstance, and in order to do substantial justice, the Court may convert the originating summons to a writ of summons and order pleadings. See: PDP V. ABUKAKAR (2007) 3 NWLR 1022) 515 at 540, 541: see also Order 3 Rule 8 of Federal High Court (Civil Procedure) Rules 2009. I therefore resolve Issue No 4 in favour of the Appellant.
By virtue of the provisions of Section 15 of the Court of Appeal Act 2004, this Court may exercise the powers conferred on the Federal High Court in this circumstance in order to facilitate the speedy administration of justice and thereby avoid multiplicity of proceedings and hearings. The said Section 15 provides as follows:
“The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the court below is authorised to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in the case of an appeal from the court below in that court’s appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction.”
The powers conferred on the Court of Appeal by Section 15 of the Act are very wide indeed as they enable the appellate court to exercise all the powers of a court of first instance – see Inakoju v. Adeleke (supra) as also reported in (2007) ALL FWLR (PT 353) 3; Dapianlong V. Dariye (supra); Jadesimi v. Okotie Eboh (1986) 1 NWLR (pt. 13) 264: U.B.N. Led v. Fajebe Foods & Poultry Farms (1994) 5 NWLR (Pt. 344) 325; Igiehon v. Omoregie (1993) 2 NWLR (Pt. 276) 398; Ejowhomu v. Edok – Eter Mandilas Ltd. (1986) 5 NWLR (pt. 39) 1; A-G Anambra State v. Okeke (2002) 12 NWLR (pt. 782) 575: Cappa & D’Alberto Ltd v. Akintilo (2003) 9 NWLR (pt. 824) 49.
One must not lose sight of the provisions of order 3 Rule 8 of the Federal High Court (Civil Procedure) Rules 2009, which provides that:
A Judge shall not be bound to determine any such question of construction if in the Judge’s opinion if ought not to be determined on originating summons but may make such orders as the Judge deems fit.
These provisions give the trial judge discretion to take any decision he deems fit if he is of the view that the matter ought not to come by way of originating summons.
Ordinarily, an appellate court would not interfere with an exercise of discretion by a lower court and substitute its own discretion. However, the appeal court would interfere with the exercise of such discretion in the most extra ordinary circumstances. The most obvious cases include where the exercise of discretion by the trial court tends to do injustice to one of the parties; or if there is a miscarriage of justice in the exercise of the discretion; or where a trial or lower court, exercised a discretion upon a wrong principle or mistake of law or under a misapprehension of the facts; or took into account irrelevant or extraneous matters or exclude relevant matters. See the cases of Abayomi Babatunde v. Pan Atlantic Shipping and Transport Agencies Ltd. & 2 ors. (2007) 4 S. C. (PT. I) 71: Solanke v. Ajibola (1969) (1) NMLR 253: (1968) NSCC (Vol. 5) 40 at 44-46: Odusote v. Odusote (1971) NMLR 228: (1971) NSCC Vol.3 231 at 235: Ifediora & ors. v. Ume & ors. (1988) 2 NWLR (Pt.74) 5. An appellate Court would, in such cases, interfere with the exercise of discretion by the trial court in order to correct or prevent the injustice.
The trial court had exercised its discretion to strike out the matter, taking into consideration the provisions of Section 138 of the Electoral Act, holding as follows:
“Under Section 138 of the Electoral Act, unlawful exclusion is one of the grounds upon which an election may be questioned.
The Plaintiff complains of unlawful exclusion from participating in the senatorial elections.
This court locks the jurisdiction to grant plaintiff its reliefs. The appropriate Court is the election tribunal.
Accordingly, suit is strike (sic) out for lack of jurisdiction.”
The issue of Section 138,which the trial court raised suo motu and decided upon, has already been resolved. However, the matter placed before the trial court for adjudication was a pre-election matter, relating to an election that took place in 2009. It was not a matter for the Election Tribunal; but, firmly within the jurisdiction of the lower court. Rather than delay any further the just resolution of the issues in controversy by having the Appellant file a fresh action by way of writ of summons, I am of the firm view that this court ought to, pursuant to the provisions of Section 15, and the provisions of order 3 Rule 8 of the Federal High Court (Civil Procedure) Rules 2009, convert the originating summons filed by the Appellant to writ of summons and order the parties to file pleadings.
This appeal therefore succeeds in part. The Originating Summons filed by the Appellant in FHC/UY/CS/139/2011 is hereby converted to Writ of Summons. Accordingly, the parties are to file their pleadings in compliance with the provisions of order 3 Rule 3 and Order 13 of the Federal High Court (Civil Procedure) Rules 2009 within 21 days from today. It is also ordered that the matter as filed shall be heard by another Judge in the jurisdiction. Parties are to bear their own costs.

UZO I. NDUKWE-ANYANWU J.C.A: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Onyekachi A. Otisi, JCA.
“where a suit is commenced by an originating summons instead of writ of summons the appropriate order to be made by the court is to direct the suit to proceed with the filing of pleadings. However if the facts are contained in an affidavit which has been controverted, the court has a duty to ask the parties to adduce oral evidence to resolve the issue in controversy. Osunbiade V. Oyewunmi (2007) All FWLR pt 368 page 1004, Dapiolong v. Dariye (supra).
I am in total agreement that in deserving cases, the Court of Appeal will exercise the powers conferred on it and order pleadings as provided in 03 Rule 8 of the Federal High Court (Civil Procedure Rules) 2009 which provides as follows.
“A Judge shall not be bound to determine any such question, of construction if in the Judge’s opinion it ought not to be determined on originating summons but may make such orders as the Judge deems fit”
It should be noted that the form of commencing of an action does not make the action incompetent. It does not matter whether an action was initiated by a writ of summons or by originating summons. The important thing is the justice of the case F.F.N v. Zebra Energy Ltd (2002) 18 NWLR pt 798 page 162, Famja Oil Ltd. v. Attorney General of the Federation (supra) Dapialong v. Dariye (supra).
For this and the reasons so well articulated in the lead Judgment, I also allow this appeal in part.
I abide by all the consequential orders in the lead judgment and adopt them as mine.

JOSEPH TINE TUR, J.C.A: I read in advance a copy of the lead judgment delivered by my Lord ONYEKACHI A. OTISI, JCA and I do concur with the orders made therein.
Authorities galore that originating summons or process should not be resorted to if there are facts in dispute. See NBN & N v. Alakija & Ors. (1978) 9 & 10 SC 59; Doherty vs. Doherty (1968) NMLR 241; Akunnia vs. Attorney-General of Anambra State (1977) 5 SC 161 at 177. In Ejura vs. Idris (2006) All FWLR (Pt.318) 646 at 663 paragraphs “E-H” and page 664 paragraphs “A-B” the Court held that:
“Originating summons is the ideal process to commence proceedings where there is no dispute on questions of fact or the likelihood of such dispute e.g. where the issue is to determine questions of construction. The main advantage of the procedure by originating summons is the emphasis on simplicity resulting from the elimination of pleadings. See: Doherty vs. Doherty (1967) 1 All NLR page 245; Osuagwu v. Emezie (1998) 12 NWLR (Pt.579) page 640; Olumide vs. Ajayi (1997) 8 NWLR (Pt.517) page 443.
Where it is obvious from the state of the affidavits that there would be an air of friction in the proceedings, then an originating summons is no longer appropriate. A writ summons would suffice in such circumstances.
My Lords, the appellant seeks the removal of an elected Governor on the grounds that forms filled by him for the gubernatorial election contained false information.
Surely, the appellant never expected the 1st respondent to agree, or concede alt the damaging facts to his person in the affidavit in support. A look at the questions for determination on the face of the originating summons, the reliefs sought, and the affidavit in support show beyond doubt that if trial proceeded at the court below it would have been hostile proceedings which would involve contentious issues and questions of fact which can only be resolved by oral evidence from the parties and their witnesses.
When the court finds an originating summons to be inappropriate, it ought to order the parties to file pleadings and come by way of writ of summons and not dismiss the suit.
In this case, the suit was not dismissed because it was brought by an inappropriate originating process, but because of the clear provisions of section 308 of the constitution which provides for an absolute bar to civil and criminal suds against Governors while in office. Suits where the provision of section 308 of the constitution applies are to be struck out, but not dismissed. See I.C.S. (Nig.) Ltd. v. Balton B.V. (2003) 8 NWLR (pt.822) page 234.”
Order 3 rule 8 of the Federal High Court Rules, 2009 reads as follows:
“8. A judge shall not be bound to determine any such question of construction if in the Judge’s opinion it ought not to be determined on originating summons but may make such orders as the Judge deems fit.”
The learned trial Judge who declines jurisdiction to entertain an origination summons has the discretion to make such orders as he deems fit. Ordinarily, it is not within the province of an appellate Court to interfere with the discretion vested in a trial judge. However, if the discretion as exercised would lead to a miscarriage of justice the Court of Appeal does interfere to right a wrong. In Odusote v. Odusote (1971) 1 All NLR 219 Udoma, JSC held at page 223-224 as follows:
“It is a well-established principle of law that all judicial discretions must be exercised according to common sense and according to justice, and, if there is any miscarriage of justice in the exercise of such discretion, it is within the competence of a Court of Appeal to have it reviewed. On the question of the exercise of discretion in granting application for adjournment, it is pertinent to quote a passage in the judgment of Lord Wright L.J. in Evans V. Bartlam (supra), to which our attention was drawn by the learned Counsel for the appellant. In his judgment Lord Wright said at page 487:
“A judge’s order fixing the date of trial or refusing to grant an adjournment is a typical exercise of purely discretionary powers, and would be interfered with by the Court of Appeal only in exceptional cases, yet it may be reviewed by the Court of Appeal. Thus in Maxwell vs. Keun (1928) 1 KB.645) the Court of Appeal reversed the trial judge’s order refusing to the plaintiff an adjournment. That was a pure matter of discretion on the facts. Atkin L.J., said (at p.653): ‘I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned Judge on such a question as an adjournment of a trial, and it very seldom does so; but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would he an injustice to one or other of the parties, then the Court has power to review such an order, and it is, to my mind, its duty to do so.”
In all the circumstances of this case it seems to us quite clear that the Court of Appeal acted arbitrarily and did not exercise its discretion judicially.”
Striking out the originating summons is not in the best interest of the appellant who if wants to still pursue the matter, may have to file a fresh writ of summons thereby a escalating the cost of obtaining justice in the law Court and further delay speedy trial. The best course is for the learned trial Judge to have ordered pleadings. For the above reasons I also direct that the parties do file and exchange pleadings for hearing to commence before another judge of the Federal High Court, Uyo, Akwa Ibom State.