YUSUF ABDULWAHEED AYINDE GBENGA v. ADENIRAN MARIAM JOY & ORS
(2019)LCN/13030(CA)
In The Court of Appeal of Nigeria
On Thursday, the 4th day of April, 2019
CA/IL/28/2019
RATIO
WORDS AND MEANING: THE WORD SHALL
This proposition of the principle of law has been enunciated in the case of Igiriga vs Bassey (2013) LPELR – 20346 1 @ 1717 wherein Ndukwe Ayanwu, JCA, held that:
The word shall in this subsection is mandatory. The Registrar shall seal every originating process. The sealing of this originating process is a condition precedent. Where the registrar fails to seal an originating process it robs the Court of jurisdiction to entertain this unsealed writ. It is even more important for the Registrar to seal an originating process as it an originating process. All the subsections of Order 8 are mandatory. A writ issued without the registrars seal is incompetent and cannot be cured. Where the word shall is used in any legislation, it means it is mandatory. There is no other meaning that can be ascribed to it. The word shall means that any failure on the part of the Registrar to seal the writ of summons invalidates the writ.PER HAMMA AKAWU BARKA, J.C.A.
WRIT OF SUMMONS: REQUIRES REGISTRAR’S SEAL
A writ unlike other processes is an originating Court process and it required the Registrars seal. NNPC vs. Elumah (1997) 3 NWLR pt. page 195; BBN vs. Olayiwola (2001) 6 WRN 141. The seal as envisaged by the Rules is a condition precedent. See Chairman LEDB vs. Adewale & Ors (1996) NWLR page 72 where Ikpeazu J., held ?This suit was instituted by means of an originating summons which was not sealed.It is clear in law that an originating summons must be sealed, but this was not done in this case……PER HAMMA AKAWU BARKA, J.C.A.
ORIGINATING PROCESSES: THE VALIDITY OF AN ORIGINATING PROCESS IS FUNDAMENTAL IN THE COMPETENCE OF A SUIT
…The validity of the issue of originating process is fundamental to the competence of a suit. Therefore, the failure to commence a proceeding with a writ of summons validly issued goes to the root of the case and any order emanating from such proceeding is liable to be set aside as incompetent and a nullity. Such a flaw clearly borders on the jurisdiction of and competence of the Court to adjudicate on the matter.?
Of recent, this Court in the case of Comrade Adams Aliyu Oshiomole & Ors vs. Hon. Ishola Balogun Fulani (unreported) in suit No. CA/IL/148/2018, delivered on the 12th of February, 2019, Per Ibrahim Mohammed Musa Saulawa, J.C.A, had this to say:
?It is trite, that the duty of the Registrar of the Court to seal an originating process, such as an originating summons (Motion) or writ of summons is a fundamental requirement of the law. Thus, any failure by the registrar to seal an originating process, such as the originating summons, is not a mere irregularity. Indeed, it is a condition precedent that joists jurisdiction upon the Court. As such, defect is so crucial that it renders the Court devoid of jurisdiction to determine the action. See IGIRIGA VS. BASSSEY (2013) LPELR-CA/C/174/2009 @ 17 PARAGRAHS C – F.PER HAMMA AKAWU BARKA, J.C.A.
JUSTICES
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria
Between
YUSUF ABDULWAHEED AYINDE GBENGA Appellant(s)
AND
1. ADENIRAN MARIAM JOY
2. ALL PROGRESSIVES CONGRESS
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The instant appeal is a challenge to the judgment of Hon. Justice Mahmud Abdulgafar of the Kwara State High Court of Justice in Suit No. KWS/411/2018 between Adeniran Mariam Joy as claimant and Yusuf Abdulwaheed Ayinde Gbenga and Two Ors, delivered on the 30th day of January, 2019; wherein the claimant?s claim for a declaration to having been duly nominated as the flag bearer of the 2nd respondent (2nd respondent herein) for the February 2019 general elections for Essa/Shawo/Igoidun constituency of the Kwara State House of Assembly was granted.
The genesis of the instant appeal is consequent upon an originating summons filed by the 1st respondent as claimant before the Kwara State High Court wherein he sought for the determination of the following question:-
1. Whether by virtues of the provisions of Section 87 Subsections (1)(2)(3) and (4) of the Electoral Act 2010 (as amended) the plaintiff is not duly returned as the flag bearer of the second Defendant to contest the seat of the house Assembly representing Essa, Shawo and Igboidun having won the majority votes in
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the primary election conducted by the 2nd Defendant on 7th October, 2018 in the constituency of Kwara State for the forthcoming general elections.
2. Whether by virtue of the express provision of Section 87 of the Electoral Act 2010 (as amended) which is to the effect that a candidate with the majority of lawful votes cast at the primaries shall be returned as the party?s flag bearer, the second Defendant has the right to substitute the plaintiff with the first Defendant even when the plaintiff scored the majority of lawful votes cast at the said primaries held on the 7th October, 2018 as candidate to contest elections for the seats of State House of Assembly representing Essa, Shawo and Igboidun constituency of Kwara State in the forthcoming general elections scheduled to hold on the 12th February, 2019.
3. Whether by the express provision of Section 87 of the Electoral Act 2010 (as amended) the 3rd Defendant is entitled to recognize the first Defendant as the candidate sponsored by the 2nd defendant for the seat of State House of Assembly representing Essa, Shawo and Igboidun constituency of Kwara State in the forthcoming general elections
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scheduled to hold in February, 2019 even when the first Defendant did not poll the majority of lawful votes cast in the primary election conducted by the 2nd Defendant on the 7th October, 2018.
4. Whether in view of the combined effect of Section 86 and 87 of the Electoral Act 2010 (as amended) the convention, congress, nomination, conferences or meetings convened for the purpose of the primary election of any political party duly registered under the Electoral Act 2010 (as amended) could be a matter only within internal affairs of such a political party.
In furtherance to the questions posed the claimant sought for the following reliefs:-
a. A declaration that the plaintiff is the duly elected flag bearer of the 2nd defendant for the February 2019 general election into the State House of Assembly to represent Essa, Shawo and Igboidun constituency of Kwara State having polled the majority of the lawful votes cast at the primary election conducted by the 2nd Defendant on the 7th October, 2018 and was so declared winner.
b. A declaration that the nomination of the 1st Defendant as 2nd Defendant?s candidate or flag bearer for the
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February 2019 general election for the seat of State House of Assembly to represent Essa, Shawo and Igboidun constituency of Kwara State is ultra vires, null and void, same not being in accordance with the declared results signed by the Kwara State Electoral Committee Chairman and Secretary being representative of the 2nd Defendant which said primary election was conducted on the 7th day of October, 2018 in which the plaintiff polled 1,441 votes whereas the 1st Defendant scored 804 votes.
c. An order directing the 2nd Defendant to forthwith accord the plaintiff her due recognition as its flag bearer for the February, 2019 general elections into the State House of Assembly to represent Essa, Shawo and Igboidun constituency of Kwara State.
d. An order nullifying the nomination of the 1st Defendant and the substitution of the plaintiff by the 2nd Defendant as its candidates for the election into the State House of Assembly representing Essa, Shawo and Igboidun constituency of Kwara State.
e. An order of perpetual injunction restraining the 2nd Defendant from recognizing, acting on, or doing anything in recognition of the nomination and selection of
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the 1st Defendant as the 2nd Defendant?s candidate for the 4th coming February 2019 general election into the State House of Assembly to represent Essa, Shawo and Igboidun constituency of Kwara State.
f. An order nullifying the purported selection of the 1st Defendant as the flag bearer to contest for the seat of the State House of Assembly representing Essa, Shawo and Igboidun constituency of Kwara State in the forthcoming general election scheduled to hold in February, 2019.
g. A declaration that the 3rd Defendant is not qualified or competent to recognize or accord any recognition to the 1st Defendant or any person other than the plaintiff as the 2nd Defendant?s candidate for the House of Assembly to represent Essa, Shawo and Igboidun constituency of Kwara State
The claimant predicated the originating summons on the following grounds:-
A. That for a candidate of a political party to be nominated as its flag bearer to contest in the general election, the candidate must have participated in the party?s primary election and that candidate must have scored the majority of lawful votes in the said election pursuant to the
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provisions of Section 87 of the Electoral Act 2010 (as amended).
B. That the second Defendant has no power whatsoever to substitute the name of the plaintiff with that of the 1st Defendant, the plaintiff having polled the majority of lawful votes cast in the 2nd Defendant?s primary election conducted on the 7th October, 208 and the plaintiff having been declared the winner by the 2nd Defendant primary election committee, by virtue of the provisions of Section 87(7) of the Electoral Act 2010 (as amended) to the effect that every party?s candidate for the February general elections must emerge through a democratic process.
C. That no provision in the Constitution of the 2nd Defendant shall have overriding effect over the Electoral Act 2010 (as amended) being a law made by the National Assembly.
It is pertinent to state that the claimant in support of his application, filed a 20 paragraph affidavit in support of the originating summons deposed to by Adeniran Mariam joy, the claimant in person, and a written address also in support of the originating summons all filed on the 19th day of November, 2018.
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Hinged on the motion papers are a number of exhibits all in support of the claimant?s claim.
The 1st respondent now appellant upon being served, entered a conditional appearance on the 14/12/2018 and filed a counter-affidavit of 8 paragraphs deposed to by the named first defendant, Yusuf Abdulwaheed Ayinde Gbenga; Exhibits 1 and 2 were hinged on the counter-affidavit. The counter-affidavit, together with the attached exhibits, and the 1st defendant written address against the originating summons were filed on the 14th day of December, 2018.
As borne by the record, the 1st respondent filed a Notice of preliminary objection on the same 14th day of December, 2018 against the hearing of the suit filed, contending that same was incompetent, the original originating summons not having been sealed and issued by the registrar of the Court. It was also contended that the suit was statute-barred, and that the suit is an abuse of Court process thereby robbing the Court the requisite jurisdiction to hear the suit.
The 1st defendant?s notice of preliminary objection was articulated in the 1st defendant?s written address dated the 12/12/2018 and filed on the same date.<br< p=””
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In response to the preliminary objection raised, the claimant/plaintiff filed a reply thereto on the 21/12/2018. A further affidavit in support of the claimant?s originating summons in seven paragraphs and deposed to by the same Adeniran Mariam Joy, attached therein is one exhibit filed on the 21/12/2018.
The 1st defendant felt challenged by the claimant?s further affidavit and thereby filed the 1st defendant?s further counter-affidavit against the originating summons, borne on six paragraphs and deposed this time by one Isiaka Abdulrasheed, a counsel in the law firm of Jawondo and Co, the firm of legal practitioners representing the 1st defendant in the suit. Attached to the further counter-affidavit are Exhibits 1-3A and a reply on points of law by the 1st defendant in response to the claimant?s written address against the preliminary objection was filed on the 11/01/2019.
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The 2nd defendant thereto, the All Progressive Congress also raised a Notice of Preliminary objection to the hearing of the suit dated the 14th day of January, 2019. The grounds of the objection are similar if not the same with those canvassed by the
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1st defendant.
A counter-affidavit of 10 paragraphs deposed to by Faizah Abubakar, a litigation counsel in the law firm of Sambo Muritala and Co., with attached exhibits was filed on the 14/1/2019.
On the 14/01/2019, the claimant, as well as the 1st defendant and the 2nd defendant identified their various processes, and adopted them as their argument, thus resulting in the lower Court reserving judgment, which was ultimately delivered on the 30th day of January,
