ZAKIRAI v. MUHAMMAD & ORS
CITATION: (2017) LPELR-42349(SC)
In the Supreme Court of Nigeria
ON FRIDAY, 28TH APRIL, 2017Suit No: SC.433/2015
Before Their Lordships:
IBRAHIM TANKO MUHAMMAD Justice of the Supreme CourtMARY UKAEGO PETER-ODILI Justice of the Supreme CourtKUMAI BAYANG AKA'AHS Justice of the Supreme CourtAMINA ADAMU AUGIE Justice of the Supreme CourtPAUL ADAMU GALINJE Justice of the Supreme Court
BetweenHUSSAINI ISA ZAKIRAI - Appellant(s)
And1. SALISU DAN AZUMI MUHAMMAD2. ALL PROGRESSIVE CONGRESS (APC)3. INDEPENDENT NATIONAL ELECTORALCOMMISSION (INEC)4. ALHAJI UMAR HARUNA DOGUWA
- Respondent(s)
RATIO DECIDENDI
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1. ACTION - ORIGINATING SUMMONS/WRIT OF SUMMONS:Distinction between an originating summons and a writ of summons"By Order 3 Rule 1 (1) of the 2009 Rules, Civil proceedings at the trialCourt may be commenced by Writ or Originating Summons, etc. As thefirst Respondent said, most, if not all, the pre election matters thatcome to this Court are initiated by Originating Summons but theAppellant contends that the writ of Summons is more appropriate.?The distinction between two modes of commencing an action boilsdown to whether there is a serious dispute as to facts involved.Where there is a serious dispute as to facts, a Writ of Summons mustbe issued. In other words, where it is evident from the Affidavitevidence before the Court that there would be "an air of friction" in theproceedings, an Originating Summons is no longer appropriate - seeNRC V. Cudjoe [2008] 10 NWLR (Pt.1095) 329 and Famfa Oil Ltd. V. A.-G. Fed. (2003) 18 NWLR (Pt. 852) 453, where this Court held- The verynature of an Originating Summons is to make things simpler forhearing. It is available to any person claiming interest under a deed,will or other written instrument whereby he will apply by OriginatingSummons for the determination of any question of construction arisingunder the instrument for a declaration of his interest - - It is aprocedure where the evidence in the main is by way of documents andthere is no serious dispute as to their existence in the pleading of theparties to the suit. In such a situation, there is no serious dispute as tofacts but what the Plaintiff is claiming is the declaration of his rights. lfthere are serious disputes as to facts then a normal Writ must betaken out not Originating Summons - Doherty v Doherty (1968) NMLR241."Per AUGIE, J.S.C. (Pp. 62-64, Paras. D-A) - read in context
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2. ACTION - ORIGINATING SUMMON(S): Whether facts have a place inoriginating summons"In effect, Originating Summons is a procedure wherein the evidence ismainly by way of documents and there is no serious dispute as to theirexistence in the pleadings - see Famfa Oil V. A-G. Fed. (supra). It isusually heard on affidavit evidence and involves questions of lawrather than disputed issues of fact - see Inakoju V. Adeleke (2007) 4NWLR (Pt. 1025) 423, wherein Tobi, JSC, explained that -In Originating Summon, facts do not have pride of place in theproceedings. The cynosure is the applicable law and its construction bythe Court. The situation is different in a trial commenced by Writ ofSummons where the facts are regarded as holding a pride of place andthe fountain head of the law in the sense that the facts lead to a legaldecision on the matter. That is not the position in proceedingscommenced by Originating Summons where facts do not play a centralrole but an infinitesimal role.?Facts may be inconsequential in proceedings commenced by way ofOriginating Summons, which are determined on affidavit evidence, butit is important that conflicts in the affidavitsare not glossed over - see Gbileve V. Addingi (supra), where this Courtaffirmed the legal position stated by Nwodo, JCA (of blessed memory),as follows - Where proceedings in a Court are by affidavit evidence, itis important that conflicts in such affidavits are not glossed over. TheCourt is enjoined to look at the nature of the conflict. When facts aredeposed in an affidavit, the purpose of counter-affidavit is to contradictthose facts and not merely set up a distinct fact as defence. Where theconflict arising from affidavit and counter affidavit depositions are noton material issues, the Court calling for oral evidence becomeunnecessary. ln effect, where the conflicts are not material to the caseor where the facts are inadmissible in evidence, the Court should notbe saddled with the responsibility of calling oral evidence to resolvethe conflict - Furthermore where conflicting evidence can be resolvedfrom documentary evidence, the need to call oral evidence becomesunnecessary.The bottom line, as far as this case is concerned, is the observation -"when facts are deposed to in an affidavit, the purpose of a counter-affidavit is to contradict those facts and not merely set up a distinctfact as defence."Per AUGIE, J.S.C. (Pp. 64-66, Paras. A-A) - read incontext
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3. APPEAL - RESPONDENT TO AN APPEAL: Options open to arespondent who is dissatisfied with a judgment"It is a well-established principle of law that the primary duty of aRespondent in an appeal is to support the judgment/decision of a lowerCourt appealed against. ?Where a Respondent is not comfortable witha finding, not the entire Judgment, which he considers fundamental, hecan challenge same by filing a cross-appeal - Cameroon Airlines V.Otutuizu (2011) 4 NWLR (Pt. 1238) 512, Obi V. INEC (2007) 11 NWLR(Pt. 1046) 565. Where the Respondent supports the judgment, butwants it affirmed on grounds other than those relied upon by theCourt, he must then file a Respondent's Notice - Kayili V. Yilbruk (2015)LPELR-24323(SC).Without a cross-appeal or Respondent's Notice, he will not be allowedto attack the judgment, and the effect of violating this rule is thatarguments in his brief in support of the Appellant will be ignored - seeObi V. INEC (supra). In this case, the fourth Respondent urged thisCourt to allow the Appeal in Appellant's favour, which is wrong, andthe end result is that the arguments in his brief will be ignored."PerAUGIE, J.S.C. (Pp. 14-15, Paras. E-D) - read in context
4. APPEAL - APPEAL AGAINST DECISION/FINDING OF COURT:Whether an appellant can only contest the decision of a lower court onissues properly raised before it"...As attractive as that line of argument is, the said provision was notconsidered at the lower Courts, and this Court cannot go there.This is because considering its argument will change the texture of thecase that went through the grill at the lower Courts. Besides, anAppellant's right of appeal is circumscribed within the parameters of adecision appealed against. Thus, it is the opinion appealed against thatis affirmed or reversed, and this cannot undertake decisions, whichmay be of utmost importance, without hearing what the Court belowhad to say about it -see Uor V. Loko (1988) 2 NWLR (Pt. 77) 430 SC,Nuwon v. Adeoti (1990) 2 NWLR (Pt. 131) 271 SC."Per AUGIE, J.S.C. (P.29, Paras. C-F) - read in context
5. COURT - DISCRETION OF COURT: Whether a court can be bound bya previous decision to exercise its discretion in a particular way"Judicial discretion is described as a sacred power that inheres to ajudge, and which he should employ judicially and judiciously - Achi V.Ebenighe & Ors (2013) LPELR-21884 (CA). Since two cases are notalways the same, this Court does not lay down rules to fetter theexercise of its discretion or that of the lower Courts. Thus, a Courtcannot be bound by a previous decision to exercise its discretion in aregimented way, because that would be putting an end to discretion -Odusote V. Odusote (1971) NSCC (Vol. 7) 231, Ajuwa & Anor v. ShellPetroleum Dev. co. Nig, Ltd. (2011) 18 NWLR (Pt.1279) 797 SC."Per AUGIE, J.S.C. (Pp. 41-42, Paras. E-A) - read in context
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6. COURT - JURISDICTION: What determines jurisdiction of Court toentertain a cause/matter"It is settled that is the Plaintiff's claims that determine jurisdiction;that is to say, it is the claim before the Court that has to be looked atto ascertain whether it comes within the jurisdiction conferred on it -see Elelu-Habeeb V. A.G. Fed. (2012) 13 NWLR (Pt. 1318) 423 SC."PerAUGIE, J.S.C. (P. 53, Paras. D-F) - read in context
7. EVIDENCE - CONTRADICTION IN EVIDENCE: Duty of court wherethere are contradictions in the evidence of witness(es)"The law insists that where there are material contradictions in theevidence adduced by a Party, the Court is enjoined to reject the entireevidence as it cannot pick and choose which of the conflicting versionto follow - Kayili V. Yilbuk & Ors (2015) LPELR -24323(SC)."Per AUGIE,J.S.C. (Pp. 70-71, Paras. F-A) - read in context
8. EVIDENCE - CONTRADICTION IN EVIDENCE: What amounts tocontradiction in evidence"A piece of evidence is contradictory to another when it asserts oraffirms the opposite of what that other asserts. Put another way,evidence contradicts evidence, when it says the opposite of what theother evidence says, not on just any point, but on a material point -Odunlami V. Nigerian Army (2013) LPELR-20701(SC)."Per AUGIE, J.S.C.(P. 71, Paras. A-C) - read in context
9. EVIDENCE - ORAL/DOCUMENTARY EVIDENCE: The position of thelaw where there is oral as well as documentary evidence"It is an elementary principle that documentary evidence is used as ahanger to test veracity of evidence, whether oral or by affidavit - seeGbileve V. Addingi (supra), Kimdey V. Mil. Gov. Gongola (1988) 2 NWLR(Pt.77) 445 and Fashanu V. Adekoya (1974) 4 SC 83. Thus,documentary evidence is a hanger to base other pieces of evidence.Inpolitical cases, the only proof of winning of an election is the electionresult duly issued; mere averments cannot stand up to that. The Courtbelow was right to place a greater value on documentary evidence,which bears eloquent testimony to what happened - See Aiki V. ldowu(2005) 9 NWLR (Pt 984) 47, wherein it was observed- Documents whentendered and admitted in Court are like words uttered and do speakfor themselves. They are even more reliable and authentic than wordsfrom the vocal cord of man because they are neither transient norsubject to distortion and misinterpretation but remain permanent andindelible through the ages. The documents bear eloquent testimony towhat happened."Per AUGIE, J.S.C. (P. 73, Paras. A-F) - read in context
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10. EVIDENCE - CONTRADICTION IN EVIDENCE: What amounts tocontradiction in evidence"Of note is the fact that the Court below found and rightly so that thetwo pieces jointly filed by the 2nd and 4th respondent contradictedthemselves. That situation does not qualify as conflict in affidavit forwhich there would be justification in calling for oral evidence of thedeponents to resolve the conflict. Such oral evidence in resolution ofconflict comes into play where it is conflict against the other party notparties on one side of the divide. See cases of Arjoy Ltd v AMS Ltd(2003) 4 NWLR (Pt.863) 425: Gbileve & Anor. v Addingi & Anor.(2014)16 NWLR (Pt. 1433) 394."Per PETER-ODILI, J.S.C. (P. 98, Paras. C-F) -read in context
11. JUDGMENT AND ORDER - ORDER OF COURT: Effect of an orderissued by a Judge"The stance of the appellant clearly goes against the basic principlethat orders of Court are deemed valid until set aside by the sameCourt or on appeal. This position is well stated by this Court in the caseof Babatunde v Olatunde (2000) 2 NWLR (Pt. 646) 568."A judgment of a Court of competent jurisdiction remains valid andbinding, even where the person affected by it believes that it is void,until it is set aside by a Court of competent jurisdiction. The positiontherefore is that a person who knows of a judgment, whether null orvoid, given against him by a Court of competent jurisdiction cannot bepermitted to disobey it. His unqualified obligation is to obey it unlessand until that judgment has been set aside."Per PETER-ODILI, J.S.C.(Pp. 87-88, Paras. F-C) - read in context
12. JUDGMENT AND ORDER - ORDER OF COURT: Effect of an orderissued by a Judge"A judgment or order of Court remains in force and binding on theparties until it is set aside. Service of Court processes may be ajurisdictional issue which can be raised at any stage of a case.However when a trial Court has determined and made pronouncementon that issue, a party who is aggrieved must follow the right coursethat is appeal challenging the pronouncement must go through theCourt of Appeal before a subsequent appeal from the Court of Appealcan be heard and determined in this Court.See Rossek v. ACB Ltd (1993) 8 NWLR (Pt. 312) 382, S.233 of theConstitution of the Federal Republic of Nigeria 1999, Babatunde v.Olatunde (2000) 2 NWLR (Pt.646) 568."Per GALINJE, J.S.C. (P. 100,Paras. B-E) - read in context
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13. JURISDICTION - CONCURRENT JURISDICTION: Whether the FederalHigh Court has concurrent jurisdiction with a State High Court inrespect of matters dealing with nomination or selection of candidatesof a political party for election into any office"This issue has been flogged and over-flogged in political casesdecided by this Court, and the position is pretty well-settled that anydissatisfied contestant at the primaries is now empowered by Section87(9) of the Electoral Act, 2010 (as amended) to ventilate hisgrievance at the Federal High Court or High Court of a State or of theFederal Capital Territory - Lokpobiri V. Ogola & Ors (2015) 10-11 MJSC74, Jev V. lyortyom (2014) All FWLR (Pt. 747) 749 SC."Per AUGIE, J.S.C.(P. 56, Paras. B-D) - read in context
14. JURISDICTION - CONCURRENT JURISDICTION: Whether the FederalHigh Court has concurrent jurisdiction with a State High Court inrespect of matters dealing with nomination or selection of candidatesof a political party for election into any office"Finally the trial Court, by virtue of S.87 (9) of the Electoral Act. hasjurisdiction to hear and determine cases bordering on whether primaryelections are conducted in accordance with party guidelines, ElectoralAct and the Constitution. The complaint before the trial Court wasabout the conduct of primary election by the 2nd Respondent for thenomination and/or selection of a candidate representing GabasawaConstituency of Kano State House of Assembly for the 2015 generalelection. Clearly, the Federal High Court has jurisdiction andcompetence to entertain the case See Gbeleve v. Addingi (2014) 16NWLR (Pt. 1433) 394."Per GALINJE, J.S.C. (P. 101, Paras. A-E) - read incontext
15. LEGAL PRACTITIONER - COUNSEL/CLIENT RELATIONSHIP:Whether Court is concerned with the terms and conditions agreed by aparty and his Counsel"To start with, the issue of representation by counsel is a matter ofcounsel-client relationship, which this Court cannot get involved in -see the case of Chief M.K.O Abiola V. F R N (1996) LPELR-40 (SC),wherein this Court, per Belgore, JSC (as he then was) said as follows-The best person to decide who represents him ... is the Appellant, andthat is his constitutional right. ... Time honoured practice is for thisissue of representation to be decided by counsel after consulting theAppellant, or the Appellant writing to intimate his choice of counselor... It is always a privilege, the matter of counsel-client relationship, andI do not believe it is right to involve the Court in this. What is more,where there is no averment that the authority of the counsel toconduct the case on a party's behalf has been withdrawn, it isaccepted that counsel had general or apparent authority to so do - seeAfegbai v. A-G., Edo State (2001) 14 NWLR (Pt. 733) 425 SC."PerAUGIE, J.S.C. (Pp. 12-13, Paras. E-C) - read in context
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16. PRACTICE AND PROCEDURE - SUBSTITUTED SERVICE: Whetherthe Court can order substituted service without an attempt at personalservice"Order 6 Rule 5 (a) to (e) of the 2009 Rules, dealing with substitutedservice, and Order 6 Rule 5 (a) and (b) reads, Where it appears to theCourt (either after or without an attempt at personal service) that forany reason personal service cannot be conveniently effected, theCourt may order that service be effected either -(a) By delivery of the document to an adult person at the usual or lastknown place of abode or business of the person to be served; or(b) By delivery of the document to some person being an agent of thePerson to be served, or to some other person, on it being proved thatthere is reasonable probability that the document would in theordinary course, through that agent or other person, come to theknowledge of the person to be served.There it is - the trial Court may order substituted service either after"or without an attempt at personal service". The word "may'' makesroom for the exercise of discretion. lt is an enabling and permissiveword and in that sense, it imposes or gives a discretionary power - seeMokelu V. Fed. Comm., Works and Housing (1976) All NLR 224."PerAUGIE, J.S.C. (Pp. 40-41, Paras. E-D) - read in context
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17. PRACTICE AND PROCEDURE - WAIVER OF RIGHT: Whether theissue of jurisdiction can be waived or conceded"A litigant may submit to a procedural jurisdiction of the Court, but nolitigant can confer jurisdiction on the Court where a Statute or theConstitution says that the Court does not have jurisdiction. Thus, whilesubstantive jurisdiction of the Court cannot be waived, a party canwaive a matter relating to procedural jurisdiction of the Court, and thisis usually determined from reliefs sought in the process - Mobil Prod.(Nig) UnLtd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1 SC.In other words, irregularity in the exercise of jurisdiction should not beconfused with a total lack of jurisdiction - see Mobil Prod. (Nig.) UnLtd.V. LASEPA (supra) wherein Ayoola, JSC, explained that-Notwithstanding that, sometimes, the distinction between substanceand procedure is blurred, it is generally accepted that matters(including facts), which define the rights and obligations of the partiesin controversy, are matters of substance defined by substantive law,whereas matters, which are mere vehicles, which assist the Court ... ingoing into matters in controversy or litigated before it, are matters ofprocedure regulated by procedural law. Facts, which constitute thecause of action, are matters of substance and should be pleaded,whereas facts, which relate to how a party is to invoke the jurisdictionof the Court for a remedy pursuant to his cause of action, is a matterof procedure outside the realms of pleadings. This distinction wasstated thus in Halsbury's law of England, Vol. 8(1), 4th Edition, para.1066: Generally speaking, it may be said that substantive rules give ordefine the right, which it is sought to enforce, and procedural rulesgovern the mode or machinery by which the right is enforced. ?In thiscase, there is no question that contrary to his vehement stand, theAppellant's Objection was basically a challenge to the proceduraljurisdiction of the Court rather than a challenge to its substantiveconstitutional or statutory jurisdiction to entertain the said Suit - seeAdegoke Motors Ltd. V. Adesanya (1989) 3 NWLR (Pt. 109) 250 SC. HisObjection was a complaint against the competence of the trial Court toentertain the Suit because the Originating Summons was not endorsedor marked as required by the said Act and Rules, which touches on theprocedural rules that got Parties to the Court, and nothing whatsoeveron the facts that led to the cause of action or substance of the Suitfiled by the first Respondent. Any defect amounted to a mereirregularity that can be waived by the Parties."Per AUGIE, J.S.C. (Pp.45-47, Paras. D-E) - read in context
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18. PRACTICE AND PROCEDURE - WAIVER OF RIGHT: When a party isdeemed to have waived his right"Was the said irregularity in this case waived? This Court nailed thisissue to the ground in Adegoke Motors Ltd. V. Adesanya (supra),wherein it stated categorically that in similar circumstances like this,the filing of a memorandum of appearance, as was done in this case,constitutes a waiver of any irregularity, and constitutes a submissionto the jurisdiction of the Court. In that case, Oputa, JSC, observed - Awrit of summons (valid or invalid is immaterial at this stage) wasserved on the Defendants. The Defendants could, if they wanted toeither:-(i) Enter an appearance on protest; or(ii) Enter a conditional appearance and;(iii) Then file a Motion asking the Court seised of the matter ... to setaside the purported Writ and the purported service on the ground ofessential invalidity of both Writ and Service.The Defendants did not do this. Rather they entered an appearancethrough their Solicitor... This implied that they wanted and intended tocontest the case of the Plaintiffs."Per AUGIE, J.S.C. (Pp. 47-48, Paras. E-D) - read in context
19. PRACTICE AND PROCEDURE - SERVICE OF COURT PROCESS(ES):Who can raise the issue of non-service"I will just say that it was none of his business, and my response issupported by decisions of this Court - see Chime V. Chime (supra),cited by first Respondent, wherein this Court, per Wali, JSC, stated - Itis not in dispute that neither 1st Respondent nor the 3rd Respondentcomplained against non-service of the Court processes... or any otherorder made. It does not, therefore, lie in the mouth of the Appellants tocomplain on their behalf. It is abundantly clear that neither the 1st nor3rd Respondents complained against non-service of any Court processon him. The Court of Appeal was perfectly right when it stated-For a party to a suit to apply for the proceedings to be nullified byreason of failure of service, where service is a requirement, it mustsufficiently be established that he or she has not been served inrespect of the proceedings and that the order made therein affectshim. It is not --open to every party to the proceedings to make such anofficious complaint. If such complaint is sustainable, it will yieldstartling results. Thus, an aggrieved Plaintiff-- would be enabled toappeal against a judgment on the technical ground that a party to theproceedings has not been served same process."Per AUGIE, J.S.C. (Pp. 49-50, Paras. E-E) - read in context
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20. PRACTICE AND PROCEDURE - SERVICE OF COURT PROCESS(ES):Who can raise the issue of non-service"...Appellant has no locus standi to so do. See the case of Chime vChime (2001) FWLR (pt. 39) pg. 1457 @ 1470 para D -G. this Courtheld in the lead judgment per Wali JSC (as he then was) as follows:"For a party to a suit to apply for the proceedings to be nullified byreason of failure of service, where service is a requirement, it mustsufficiently be established that he or she has not been served inrespect of the proceedings...In the instant case it was not open to the applicants to argue that theproceedings be nullified on the ground that the 3rd defendant was notserved with the originating summons."Per PETER-ODILI, J.S.C. (P. 89, Paras. A-D) - read in context
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AMINA ADAMU AUGIE, J.S.C. (Delivering the Leading
Judgment): This Appeal relates to a pre-election matter,
and it turns substantially on the issue of service outside
jurisdiction. The first Respondent filed an action by way of
originating Summons against the Appellant and other
Respondents at the Federal High Court, Kano [trial Court],
wherein he presented the following question for
determination-
Whether the 3rd Defendant can publicize, recognize and
include the name of the 2nd Defendant or deal with him as
the candidate of 1st Defendant (APC) to contest election
into Kano State House of Assembly representing Gabasawa
Constituency of Kano State scheduled to take place on
28/2/2015, the plaintiff having scored the majority of the
lawful votes cast at the primary election held by the 1st
Defendant on 2/12/2014 in Gabasawa Local Government
Area of Kano State for the purpose of presenting a
candidate of the Party for election into Kano State House of
Assembly to represent Gabasawa Constituency of Kano
State.
The First Respondent, as Plaintiff, also claimed the
following reliefs -
1. An order of this Hon. Court directing 3rd Respondent to
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publicize, recognize and include the name of the Plaintiff as
the 1st Defendant's rightful candidate for Gabasawa
Constituency of Kano State House of Assembly in the
general election scheduled to take place on 28/2/2015.
2. A declaration of Court that the Plaintiff is the rightful
candidate of the 1st Defendant who will represent
Gabasawa Constituency of Kano State House of Assembly
in the general election scheduled to take place on
28/2/2015 having scored the majority of votes cast at the
primary election conducted by the 1st Defendant on
2/12/2014 in Gabasawa Local Government Area [LGA] of
Kano State for the purpose of producing a candidate of the
1st Defendant for the election.
3. An order of Court restraining the Defendants either
through their agents, privies or whosoever claiming on
their behalf, from recognizing, treating, publishing, listing
or considering the name of 2nd Defendant (sic) as 2nd
Defendant's (sic) candidate to represent Makada
constituency of Kano House of Assembly in the general
election scheduled to take place on 28/2/2015.
The Originating Summons was filed on 5/2/2015, and the
addresses endorsed thereon for service on
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the second and third Respondents, who were the first and
third Defendants respectively, were situated at the Federal
Capital Territory, Abuja. However, by Motion Ex-parte filed
on the same day – 5/2/2015, the first Respondent sought
and was granted leave to serve the other Parties by
substituted means - the second Respondent, Appellant, and
fourth Respondent through "Barrister Haruna Falali", Legal
Adviser of Kano State Branch of APC, and the third
Respondent [INEC] through its office situated in Kano.
Upon being served, second and fourth Respondents entered
unconditional appearance, while the Appellant and third
Respondent entered conditional appearance. Initially, one
Nura Zubair, Assistant Legal Adviser of APC in Kano State,
deposed to a Counter Affidavit filed on 16/2/2015, wherein
he averred that he had consent of the second and fourth
Respondents to do so. He further averred that -
5. The 1st Defendant indeed conducted primary election
into the Kano State House of Assembly Gabasawa
constituency.
6. Both the Plaintiff and the 2nd Defendant participated in
the primaries having satisfied all the conditions set out by
the 1st Defendant
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and the Plaintiff scored 216 votes while the 2nd Defendant
scored 32 votes.
7. The 1st Defendant forwarded the name of the Plaintiff.
The Plaintiff having won the primaries and having satisfied
all the conditions set out by the 1st Defendant.
8. The Plaintiff is the rightful candidate for the election into
the House of Assembly of Gabasawa Constituency.
Later, fourth Respondent himself deposed to a Further and
Better Counter-Affidavit filed on 27/2/2015, wherein he
averred that as the Chairman of APC, Kano (the 1st
Defendant), he did not give the said Nura Zubair authority
to depose to the earlier counter affidavit "as they do not
represent the true position of facts"; and furthermore-
5. That I, as the Chairman of the 1st Defendant knows as a
fact that no primary election into the House of Assembly of
Gabasawa constituency was conducted by the 1st
Defendant on 2/12/2014.
6. That the 1st Defendant did not send the name of anybody
to the 3rd Defendant in respect of the said Gabasawa
House of Assembly Primary Election.
7. That the Counter Affidavit deposed to by Nura Zubair
was done without my consent and knowledge and that of
the 1st
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Defendant because of breakdown in communication.
The third Respondent [INEC] filed a Counter-Affidavit to
the said Further and Better Counter-Affidavit, wherein the
deponent averred-
1. I have read the Further and Better Counter-Affidavit of
the 1st and 4th Defendants and wish to state as follows:-
(a) Paragraphs 5, 6 and 8 of the 1st and 4th Defendant’s
Further and Better Counter-Affidavit all are not true
(b) The 1st Defendant conducted its primary election into
State House of Assembly Gabasawa constituency on
2/12/2015 and was duly monitored by the 2nd Defendant.
(c) The 3rd Defendant on 25/12/2015 at its National
Headquarters Abuja received Form CF001 from the 1st
Defendant in the name of the 2nd Defendant as its
candidate standing for election into State House of
Assembly Gabasawa Constituency. [Said Form annexed as
Exhibit A3].
(d) The said Form CF001 was displayed by the 3rd
Defendant in compliance with its statutory duty.
(e) The 1st Defendant did forward the name of the 2nd
Defendant and same was published in the final list of
candidates standing for 2015 General Election.
(f) That the 3rd Defendant
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have no power to list any name in the list of candidates
standing for election save the one forwarded by the
Political Party.
On 6/3/2015, the Appellant filed a Notice of Preliminary
Objection to the competency of the said Suit premised on
the following Grounds -
a) That the Originating summons was neither
endorsed nor marked as required by the Sheriffs and
Civil Process Act and the Enforcement of judgment
and Service of the Process Rules.
b) That this trial Court has no jurisdiction to
entertain the action on account of the Paragraph (d)
above.
c) Any other order or orders as this Honourable Court may
deem fit to make in the circumstances of this case.
In all, Parties filed seven series of Affidavits, Counter-
Affidavits and Further and Better Counter-Affidavits. They
were taken together, and in his Judgment delivered on
11/3/2015, the learned trial Judge, F. O. Riman, J.,
concluded as follows on the Preliminary Objection -
This originating summons was filed on 5/2/2015 and
the address of service endorsed on the originating
summons are ... However, on 6/2/2015, this Court
pursuant to the motion Ex-Parte filed on 5/2/2015
granted
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leave to the Plaintiff to issue and serve the 1st, 2nd
and 4th Defendants with the Originating Summons
and all other Court processes in this matter by
substituted means ... It is my considered view that
with the intervening order of this Court issued on
6/2/2015 before the service of the Originating
Summons outside jurisdiction, the requirements of
the Sheriffs and Civil Process Act as provided in
Sections 95 to 99 for writ meant for service outside
jurisdiction was no longer necessary as service (sic)
and to be served in Kano State within jurisdiction. I
find as a fact [that] service was properly done in Kano
State within jurisdiction.
As to the suit itself, he relied on the decisions of this Court
in CPC v Ombugadu (2013) 18 NWLR (1385) 79 SC
and Gbileve v. Addingi (2014) 16 NWLR (Pt. 1433) 402
SC, and granted all the reliefs sought by first Respondent,
who he added, "remains the 1st Defendant's candidate to
represent Gabasawa Constituency" in the said Election.
Dissatisfied, the Appellant filed an Appeal at the Court
below, wherein he formulated the following three issues for
determination-
i. Whether the issuance and service of the Originating
Summons
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349(
SC)
in this Suit was validly done.
ii. Whether the trial Court was right to have assumed
jurisdiction to entertain and determine this Suit.
iii. Whether the claims were rightly granted and without
resolving the issues and without calling for oral evidence.
The 1st Respondent cross-appealed against this part of its
decision -
I am of the view that as a party against whom the Writ
was taken out and issued, the 2nd Defendant [i.e. the
Appellant] has the inherent legal right to object to its
validity on any sustainable ground in law, whether or
not the challenge would benefit the 1st and 3rd
Defendants [i.e the first and third Respondents
herein]
He formulated one issue for Determination in his Cross
Appeal i.e. -
Whether in the circumstances of this case, the Appellant
has the inherent legal right to challenge the Originating
Summons issued and served in this case on the ground of
non-compliance with Section 97 of the Sheriff and Civil
Process Act.
The Court below was of the view that the Appellant's first
issue flows with the Cross-Appellant's Issue, and treated
both issues together.
At the end of it all, it resolved both Issues against
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7) LP
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SC)
8
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7) LP
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349(
SC)
the Appellant. It also resolved the Appellant's second and
third Issues against him, and dismissed the main appeal as
lacking in merit. However, it found the 1st Respondent's
Cross-Appeal meritorious, and it allowed same.
Aggrieved, the Appellant filed a Notice of Appeal in this
Court, which contains fifteen Grounds of Appeal. He
formulated five Issues for Determination therefrom in his
Brief of Argument and that is-
1. Whether the lower Court was right to have held
that leave to issue the Originating Summons, leave to
serve the Originating Summons and leave to mark
same for service outside jurisdiction are not
necessary, not mandatory, has been waived by the 2nd
and 3rd Respondents and cannot be raised by the
Appellants at all.
2. Whether the lower Court rightly held that issue of
substituted service and personal service was not
raised both at the trial Court and before the lower
Court, and indeed the issue of mode of service is
phantom, esoteric and not real?
3. Whether the lower Court rightly ignored the failure
to mark the summons as “concurrent” and trial
Court’s non-consideration of the “Further and Better
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7) LP
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SC)
Counter-Affidavit in this Suit”?
4. Whether the lower Court was right to hold that the
trial Federal High Court was competent and did
competently assume jurisdiction in this case?
5. Whether, in the circumstances of this case, the Suit
was rightly commenced by Originating Summons and
the lower Court rightly found on the Affidavit before
it including issues of forgery.
The first Respondent also formulated five Issues for
Determination-
1. Whether in the circumstances of this case the leave
of the trial Court to issue and mark the Originating
summons, which was served within jurisdiction of the
2nd and 3rd Respondents, was necessary and whether
the Appellant can raise same.
2. Whether the Lower Court was right when it held
that the Appellant did not raise the issue of the
validity of the order of substituted service before the
trial Court.
3. Whether in the circumstances of this case there
was failure from the part of the 1st Respondent to
have marked the Originating Summons as concurrent.
4. Whether the trial Court (Federal High Court) has
jurisdiction over this matter.
5. Whether the lower Court was right when it
10
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7) LP
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349(
SC)
held that the trial Court was right when it decided the
matter before it based on the Affidavit evidence
placed before it.
There is a bit of a hiccup regarding second and fourth
Respondents' Briefs of Argument. The Appellant argued in
his Reply Brief that the second Respondent's brief filed on
12/1/2017, was filed out of time, and is, therefore,
incompetent. He referred the Court to an Affidavit of
Service filed on 23/2/2016, which shows that the second
and the fourth Respondents' counsel was served with his
brief on 10/8/2015 and another Affidavit of service filed on
21/11/2016 which shows a "second direct service” of his
brief was also effected on 17/10/2016.
He urged this Court to strike out the brief since the
mandatory provision of Order 6 Rule 5(2) of its Rules, were
not complied with.
As the Appellant pointed out, this Court, on 11/1/2017,
advised learned counsel for the second and fourth
Respondents to regularize their briefs. But it is his
contention that their original brief was filed out of time
before then, and failure to file within time and without
regularizing same, is fatal, citing PDP V. INEC (2014) 17
NWLR (Pt. 1437) 525
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7) LP
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349(
SC)
at 553 and CPC V. INEC (2011) 18 NWLR (Pt.1279)
493.
As it happened, I was on the Panel that sat on that
11/1/2017, and what the Appellant failed to mention in his
Reply Brief is that a Brief for second and fourth
Respondents was filed on 14/11/2016. But a different
counsel filed another Brief for them on 22/12/2016, and on
that day, two different counsel announced appearance for
the same second and fourth Respondents. After some
clarifications, this Court directed that they file separate
briefs for the Respondents.
The issue now is whether the separate Briefs of Arguments
filed by the second and fourth Respondents on 12/1/2017
and 16/1/2017 respectively, is competent. In my view, there
is nothing to this issue.
To start with, the issue of representation by counsel is a
matter of counsel-client relationship, which this Court
cannot get involved in - see the case of Chief M.K.O
Abiola V. F R N (1996) LPELR-40 (SC), wherein this
Court, per Belgore, JSC (as he then was) said as follows-
The best person to decide who represents him ... is
the Appellant, and that is his constitutional right. …
Time honoured practice is for this issue of
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7) LP
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349(
SC)
representation to be decided by counsel after
consulting the Appellant, or the Appellant writing to
intimate his choice of counselor … It is always a
privilege, the matter of counsel-client relationship,
and I do not believe it is right to involve the Court in
this.
What is more, where there is no averment that the
authority of the counsel to conduct the case on a party's
behalf has been withdrawn, it is accepted that counsel had
general or apparent authority to so do - see Afegbai v. A-
G., Edo State (2001) 14 NWLR (Pt. 733) 425 SC.
In this case, Mrs. H. O. Ben Umar, who filed the first joint
brief, forwarded correspondence from the fourth
Respondent (to her); (from) the National Legal Adviser of
the second Respondent to her; and from the fourth
Respondent to the said National Legal Adviser, which
indicate that she had been briefed by the fourth
Respondent, the Chairman of APC, Kano, to represent him
and the said APC itself.
But the National Legal Adviser's letter refuting her
representation for second Respondent is dated 2/12/2016
after she had filed the brief.
However, the said series of letters were merely forwarded
and received
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7) LP
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SC)
by the Court on 22/12/2016: unattached to a Court process,
which means they are not properly before this Court, and
this Court cannot act or rely on anything said in the letters
regarding this issue.
In other words, there is nothing before this Court
challenging her authority to file the first joint Brief of
Argument on 14/11/2016, which was filed within the time
stipulated by the Rules of this Court.
However, both counsel resolved amongst themselves in
open Court that they would each appear for the said
Respondents separately.
Thus, there was a valid Brief in place before both counsel
filed the aforesaid separate briefs on 12/1/2017 and
16/1/2017 respectively. The contention that the said two
Briefs are incompetent lacks merit.
Even so, the fourth Respondent’s Brief wil l be
discountenanced because he is asking this Court to allow
the Appeal, which is not what is expected from a
Respondent to an appeal. It is a well-established principle
of law that the primary duty of a Respondent in an appeal is
to support the judgment/decision of a lower Court appealed
against.
Where a Respondent is not comfortable with a finding, not
the
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7) LP
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349(
SC)
entire Judgment, which he considers fundamental, he can
challenge same by filing a cross-appeal - Cameroon
Airlines V. Otutuizu (2011) 4 NWLR (Pt. 1238) 512,
Obi V. INEC (2007) 11 NWLR (Pt. 1046) 565. Where
the Respondent supports the judgment, but wants it
affirmed on grounds other than those relied upon by the
Court, he must then file a Respondent's Notice - Kayili V.
Yilbruk (2015) LPELR-24323(SC).
Without a cross-appeal or Respondent's Notice, he will not
be allowed to attack the judgment, and the effect of
violating this rule is that arguments in his brief in support
of the Appellant will be ignored - see Obi V. INEC (supra).
In this case, the fourth Respondent urged this Court to
allow the Appeal in Appellant's favour, which is wrong, and
the end result is that the arguments in his brief will be
ignored.
The third Respondent filed a Brief, but only quoted the
decision of this Court in A-G, Fed. V. Abubakar (2007)
10 NWLR (Pt. 1041) 1, and added that in the light of the
admonitions therein by this Court, "[it] will abide by
whatever decision this Court renders in the Appeal”. It is
safe to say that it has nothing to contribute to the
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7) LP
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349(
SC)
determination of this Appeal, but in my view, it did not
need to file a Brief to say so.
As it is, this Appeal will be determined on the three briefs
left. The second Respondent formulated the following three
Issues -
1. Whether the lower Court was right when it held
that the Originating Summons was competent and
upheld the decision of the trial Court which dismissed
the Appellant's Preliminary Objection.
2. Whether the lower Court was right when it held
that the trial Court rightly assumed jurisdiction in
this Suit.
3. Whether the lower Court considered the Further
and Better Counter Affidavit of 2nd and 4th
Respondents and rightly upheld the decision of trial
Court that granted all reliefs sought in the
Originating Summons.
The Appellant and first Respondent's Issues 1-3 which they
argued together in their respective briefs, and second
Respondent's Issue 1, are on the objection raised as to
validity of the Originating Summons, and the Appellant
addressed this Issue under the following heads –
i) issuance of the Originating summons;
ii) Endorsement of the Originating Summons issued
for service outside jurisdiction; and
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7) LP
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SC)
iii) Service of the Originating Summons outside
jurisdiction of the Court.
The first head is hinged on the point made by the Court
below that-
It is obvious from the cases of Touton SA V. Grimaldi
Compagnia Di Narga Zioni SPA (2011) 4 NWLR (Pt.
1236) 1 and Agip (Nig.) Ltd v. Agip Petroli
International (sic) NWLR (Pt. 1187) 348 relied on by
counsel for the submission that counsel to the
Appellant confused provisions of the Federal High
Court (Civil Procedure) Rules 2009. The Appellant
confused the provisions of the Federal High Court
(Civil Procedure) Rules 2000 with provisions of the
Federal High Court (Civil Procedure) Rule 2009.
Order 6 Rules 12(1) of the 2000 Rules stated very
clearly that “No writ which, or notice of which, is to
be served out of jurisdiction shall issue without the
leave of Court.” This Court is not aware of any such
corresponding provision in the 2009 Rules and none
was referred to by Counsel to the Appellant. Order 6
Rules 13 to 17 of the (2009) Rules talks about leave
to serve originating process out of jurisdiction and
not leave to issue. The proceedings in the lower Court
in this matter were governed by
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7) LP
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349(
SC)
the provisions of the (2009) Rules and there was thus
no obligation on the first Respondent to obtain leave
to issue the Originating Summons it took out.
The said Federal High Court (Civil Procedure) Rules
coming up here will hereinafter be referred to as the 2000
Rules and the 2009 Rules.
The Appellant argued that a comparison of Order 6 Rules
12(1) of the 2000 Rules quoted by the Court below with
Order 6 Rules 13 to 17 of the 2009 Rules, shows that
though not in the exact language but their meanings,
intendments and principles remains the same; that it makes
provisions for leave to serve outside jurisdiction; and that
the question now is whether there is any guidance therein
for leave to issue originating summons for service outside
jurisdiction.
He contends that it is a rule of practice generated by
Section 9 of the Federal High Court Act and Order 56 Rule
8 of the 2009 Rules to the effect that the Court "shall adopt
such procedure as it deems fit to do substantial justice
between the parties concerned". He also referred to Order
6 Rule 14 of the 2009 Rules, and submitted that in Owners
of MV "Arabella" v. N.A.I.C. (2008) 11 NWLR
(Pt.1097) 182, this
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7) LP
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SC)
Court did not rely or use any specific provisions of the said
rules; and that leave to issue and serve are both
coterminous, mandatory and condition precedent to the
exercise of the Court's jurisdiction.
The first Respondent argued that it is wrong to assert that
the said provisions have the same meaning; that to say that
will amount to adding a phrase, which was repealed by the
Rules, and will equally amount to a Court becoming a
legislative body by making addition to an unambiguous
provision of the law; and that the Courts have no power to
impose on a litigant a duty that is not recognized by law.
Furthermore, that as the rules did not provide for leave to
issue, any attempt by the Appellant to make leave to issue
as a mandatory requirement, will amount to imposing an
obligation on him that the Rules of Court and other
enabling Statutes never imposed on him - Ault Wibong
(Nig.) Ltd. V. Nibel Ind. (2010) 5-7 MJSC (Pt. 111)
155
He also argued that since the 2009 Rules only provided for
leave to serve out of jurisdiction, it presupposes that all the
other things not specifically mentioned, such as leave to
issue, were excluded; encapsulated in
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7) LP
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349(
SC)
the Latin Maxim, expressio unius est exclusio alterius -
what is stated in Statute expressly excluded that which is
not stated in the Statute - Osahon V. F.R.N. (2003) 16
NWLR (Pt 845) 89.
On the Appellant’s contention that it is rules of practice
that made it mandatory to seek leave before issuance of
originating processes, and that this Court did not use any
specific provision of those Rules in Owners of MV
"Arabella" V. N.A.I.C. (supra), he argued that this is
incorrect because that case was decided on the provision of
Order 10 Rule 14 of the Federal High Court (Civil
Procedure) Rules 1976.
The second Respondent also submitted that the Court
below was right, and referred to its finding at page
554-555, as follows-
This Court has read the provisions of Order 6 Rules
13 of the (2009 Rules) and Sections 97 and 99 of the
Sheriffs and Civil Process Act and must say that
nowhere therein was it stipulated that an originating
process for service outside jurisdiction cannot be
issued out of the Federal High Court without the
leave of Court.
It submitted that the position of the Court below represents
the true and correct interpretation of the
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7) LP
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349(
SC)
provisions of Order 6 Rules 13 of the 2009 Rules, which
simply provided that leave must be obtained to serve a writ
outside the Court's jurisdiction; and that even the Appellant
in his entire submission before this Court could not debunk
that finding but heaped his objection on a duty purportedly
imposed on the first Respondent by the law, which the law
never provided.
What is this complaint all about? The Appellant is right that
the said Order 6 Rule 12 (1) of the 2000 Rules provides as
follows -
No writ which, or notice of which, is to be served out
of jurisdiction shall be served without the leave of
Court.
However, his contention is that the first Respondent
required leave to issue the Originating Summons for
service outside jurisdiction.
He concedes that Order 6 Rules 13-17 of the 2009 Rules
makes no mention of leave to issue but contends that it is a
rule of practice in conjunction with Order 6 Rule 14 (1) of
the 2009 Rules that says -
Every application for leave to serve a writ of notice on a
defendant out of the jurisdiction shall be supported by
affidavit or other evidence stating that in the belief of the
deponent the
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7) LP
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349(
SC)
plaintiff has a good cause of action and showing in what
place or country the defendant is or probably may be found,
and the grounds upon which application is made.
He relied on the decision of this Court in Owners of MV
"Arabella" v. NAIC (supra) which he says gives judicial
support and credence to this position and rules of practice
that leave to issue must be sought.
As the first Respondent submitted, contrary to his
assertion, that case was decided based on Order 10 Rule 14
of the 1976 Rules.
Thus, the Respondents are right; the Appellant has not
come up with convincing arguments to counter the finding
of the Court below that the provisions of the 2009 Rules,
impose no obligation on the first Respondent to obtain
"leave to issue" the Originating Summons.
Rules of Court are not static; they change as the society
evolves and legal issues become more and more complex or
sophisticated. The said Federal High Court {Civil
Procedure} Rules of 1976 and 2000, may have stipulated
that no writ of service out of jurisdiction can be issued
except by leave of Court, but the 2009 Rules did not say so.
The Appellant cannot bring in, what he
22
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7) LP
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349(
SC)
called a rule of practice, to hold sway or supersede
provisions of the 2009 Rules. No doubt, the Federal High
Court (Civil Procedure) Rules, has undergone several
modifications geared towards improving access to justice
since 1976, and to say that a particular rule must be
carried on and implemented under Rules made decades
later, amounts to taking the clock back. Let me just say that
this sub-issue is resolved against the Appellant.
The next head relates to the endorsement of the said
process. On this score, the Court below referred to the
provisions of Sections 97 and 99 of the Sheriffs and Civil
Process Act, and held as follows -
[They] were for the benefit of the second and third
Respondents listed to be served outside jurisdiction. It was
not in contest ... that the Originating Summons was
eventually served on the second and third Respondents in
Kano State within jurisdiction, and not outside jurisdiction.
Thus, the dereliction on the part of the first
Respondent was of no importance since they are in
respect of service carried out outside jurisdiction.
He further held as follows on the effect of the said
derelictions -
At a point in
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7) LP
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SC)
time there was so much confusion on the issue and this was
brought about by the decisions in Skenconsult (Nig) Ltd.
V. Ukey (1981) 1 SC 6, Ezamo V. Oyakhire (1985) 1
NWLR (Pt. 2) 195, Nwabueze V. Okoye (1988) 4
NWLR (Pt. 91) 664, Adegoke Motors Ltd. V. Adesanya
(1989) 3 NWLR (PT. 109) 250 and NEPA V Onah
(1997) 1 NWLR (Pt. 484) 680.
However, in Odu’a Investment Co. Ltd V Talabi (1997)
10 NWLR (Pt. 523) 1, the Supreme Court constituted a
full panel of seven Justices to consider the issue and to
reconcile its conflicting decisions on the issue and the
decisions of the Court, by a majority of six to one, was read
by Ogundare, JSC, [who] streamlined the views of the
Supreme Court on the issue… In other words, the
position taken by the full panel of the Supreme Court
was that non-compliance with the provisions of the
Federal High Court Rules and the Sheriffs and Civil
Processes Act is an irregularity, which only renders
the writ voidable, not void, and that such a writ will
be voided at the instance of a Defendant who acts
timeously and before further steps are taken in the
matter. It must be conceded that in Owners of the MV
“Arabella”
24
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7) LP
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349(
SC)
V. N.A.I.C. (2008) 11 NWLR (Pt. 1097) 182 the
Supreme Court speaking on the effect of non-
compliance with Section 97 of the Sheriffs and Civil
Process Act said that… But the decision in Owners of
the MV “Arabella" v. NAIC was delivered by a panel of
five Justices of the Supreme Court, and it is
jurisprudentially correct that it cannot supersede,
override or take precedence over a decision delivered
by a panel of seven Justices of the Supreme Court.
The decision in Odu'a Inv. Co. Ltd. V. Talabi thus still
remains the law until it is set aside or overridden by a
decision of a panel of seven Justices or the Supreme
Court.
The Appellant submitted the position taken by the Court
below is not correct because the decision of this Court in
Odu'a V. Talabi (supra), cannot be a decision of the full
Court since one of the seven Justices, Kutigi, JSC, (as he
then was) dissented; that the ratio is basically on the
provisions of Section 99 of the Sheriff and Civil Process
Act; and that the Odua's Case is also distinguishable from
the present case.
He argued that good service cannot validate an invalid
process, and bad service cannot invalidate a
25
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7) LP
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349(
SC)
valid process; that the prayer as granted is not for service
on them in Kano but for substituted service on them
through the said Barrister Haruna Falali, unlike Prayer 2
that said service on 3rd defendant "through its Kano
office", therefore, non-endorsement is of importance and
fatal to the entire process.
Furthermore, that he raised the point about non-
endorsement of either one out of the Originating Summons
issued for service within and outside jurisdiction with the
word "concurrent" in line with Order 3 Rules 19 and 20 of
the 2009 Rules, however, the Court below did not consider
it at all, for no reason or for no just cause; and that the
failure to consider same is a breach of fair hearing.
The first Respondent, however, submitted that the
Appellant's argument is purely academic since he did not
contest the fact that the service was carried out within the
jurisdiction of the trial Court.
Furthermore, that Section 97 of the Sheriff and Civil
Process Act is meant for the benefit of defendants residing
outside jurisdiction, who are not to be served outside
jurisdiction without the requisite endorsement; but where a
party is served with
26
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7) LP
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349(
SC)
jurisdiction or even where a party is served outside the
jurisdiction and waived his right to challenge the
procedure, he will not later be heard to complain - Odu'a
Investment Ltd. V. Talabi (supra), and that second and
third Respondents, on whose behalf, the Appellant is
raising this issue, waived it and did not complain of non-
compliance at the trial Court.
He added that since the said Sections 97 and 99 of the
Sheriffs and Civil Process Act were promulgated for the
benefit of defendants residing outside jurisdiction, it will
amount to promoting champerty if the Appellant is allowed
to raise an issue that did not concern him.
As to the Appellant's contention that the said service is
wrong, he argued that he failed to fault the said finding of
the Court below, and none of them challenged that Order;
that Orders of Court are deemed valid until set aside by the
Court or quashed on appeal and it is not within the
province of a litigant to determine the validity of a Court
Order - Babatunde V. Olatunde (2000) 2 NWLR (Pt.
646) 568.
The second Respondent urged this Court to restate the law
that "purpose of service is to put the parties on notice of
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7) LP
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349(
SC)
the subsistence of the pendency of a legal action against
them and afford them opportunities to raise a defence
against the legal action" because -
Any other expectation of service beyond this simple
point is technical justice and repugnant to the growth
of our jurisdiction in this country.
It further argued that the issue is being contended up to
this Court by a party, who has no business with the service
effected; and that –
The Appellant is merely contending that the Originating
process was not marked for service outside jurisdiction
even though there is an Order of Court directing service
within jurisdiction and that service had in fact been carried
out with parties taking further steps in the proceedings.
With respect, the Supreme Court should seriously
discourage contentions of this nature. Law is the life-wire
of every society. It must be organic and should grow as
society grows. Parties should be eager to have their
disputes determined on substance and not form.
Practitioners and Honourable Ministers of Law in the
Temple of Justice must be seen to encourage this as well.
Cases and clients will come and go but the law and the
Court will remain and we have a bounden duty to
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7) LP
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SC)
preserve the integrity of the Courts.
It also cited Order 6 Rule 31 of the 2009 Rules which
provides that "in this Order 'out of jurisdiction' means out
of the Republic of Nigeria", and argued that since the said
Rule provides that any State in Nigeria is within
jurisdiction, and Kano State is a State within the Federal
Republic of Nigeria, the issue of leave to serve or need to
mark for service outside jurisdiction, does not apply in this
case.
As attractive as that line of argument is, the said provision
was not considered at the lower Courts, and this Court
cannot go there.
This is because considering its argument will change the
texture of the case that went through the grill at the lower
Courts. Besides, an Appellant's right of appeal is
circumscribed within the parameters of a decision appealed
against. Thus, it is the opinion appealed against that is
affirmed or reversed, and this cannot undertake decisions,
which may be of utmost importance, without hearing what
the Court below had to say about it -see Uor V. Loko
(1988) 2 NWLR (Pt. 77) 430 SC, Nuwon v. Adeoti
(1990) 2 NWLR (Pt. 131) 271 SC.
In this case, the issue turns on the
29
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7) LP
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SC)
validity of the said process, and the relevant provisions of
Sheriffs and Civil Process Act are-
97. Every writ of summons for service - - out of the State or
the Capital Territory in which it was issued shall, in
addition to any other endorsement or notice required by
the law of such State or the Capital Territory, have
endorsed thereon a notice to the following effect ... "This
summons (as the case may be) is to be served out of the --
State (as the case may be)" and in the - - - State (as the
case may be).
98. A writ of summons for service out of the State or
the Capital Territory in which it was issued may be
issued as a concurrent writ with one within such State
or the Capital Territory and shall in that case be
marked as concurrent.
99. The period specified in a writ of summons for service - -
as the period within which a defendant is required to
answer before the Court to the writ – shall not be less than
thirty days after service of the writ has been effected or if a
longer period is prescribed by the Rules of the Court within
which the writ is issued, not less than that longer period.
Order 3 Rules 19 and 20 of the 2009 Rules,
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349(
SC)
also provides as follows -
19. A Plaintiff may at the issuance of an originating
process or at any time during its life span, cause to be
issued one or more concurrent originating processes
each to bear the same date as the initial process.
Marked “CONCURRENT” and have stated on it the
date of issue.
20. An originating process for service within
jurisdiction may be issued and marked as a
concurrent originating process with one for service
out of jurisdiction and an originating process out of
jurisdiction may be issued and marked as a
concurrent originating process with one for service
within jurisdiction.
In other words, these provisions in the said Act and Rules
envisage a situation where one and the same originating
process is to be served within the jurisdiction and out of the
jurisdiction where it was issued. Both processes are to be
marked "Concurrent” and dated same day, at the time the
process is issued or at any time during its life span.
In this case, the Originating Summons filed by first
Respondent on 5/2/2015 has no such markings but has
addresses for service on second and third Respondent at
the Federal Capital Territory, Abuja.
On that same day,
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5/2/2015 before service had been effected, first Respondent
filed a Motion Ex-Parte praying the trial Court for an Order
of Court granting him leave "to issue and serve" the
Appellant and second, third and fourth Respondents by
"substituted means".
The Application was granted as prayed the next day,
6/2/2015, and the Appellant, second and fourth
Respondents were all served within jurisdiction through
"Legal Adviser of the Kano State Branch of [APC] in the
person of Barrister Haruna Falali", and third Respondent
[INEC] was also served within jurisdiction through its
"Kano Office”.
The Appellant filed a Memorandum of Conditional
Appearance, but followed it up with a Counter-Affidavit in
opposition to the first Respondent's Affidavit filed in
support of the Originating Summons, wherein he joined
issues with the first Respondent on the facts.
The Second and fourth Respondents f i led their
Memorandum of Appearance unconditionally, and they also
filed Counter Affidavits and Further and Better Counter-
Affidavits in reaction to the process.
Third Respondent filed a Conditional Memorandum of
Appearance, but it also filed a Counter Affidavit to
32
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7) LP
ELR-42
349(
SC)
the Affidavit in support of the Originating Summons. In
other words, the Appellant and the second, third and fourth
Respondents joined issues with the first Respondent as
regards the merit or otherwise of the Originating Summons
itself.
It is after this that the Appellant filed the Objection in
question. The trial Court overruled the Objection because,
in its view, the said Order of substituted service, which it
issued on 6/2/2015, before the Originating Summons could
be served outside jurisdiction meant that the service of
same was no longer necessary outside jurisdiction and so,
the service was properly done in Kano State within
jurisdiction.
Obviously, the Order for substituted service is at the center
of everything, and to resolve this issue, its status must be
determined.
This brings to the fore the Appellant's last head of
complaint- service of the Originating Summons outside
jurisdiction of the Court.
The Court below held as follows on the validity of the said
Order-
The Appellant also canvassed the issue of the
invalidity of the Order of substituted service made by
the lower Court on 6/2/2015 and consequent on which
the
(201
7) LP
ELR-42
349(
SC)
33
(201
7) LP
ELR-42
349(
SC)
originating Summons was served on the Appellant
through the legal Adviser of the second Respondent.
Counsel has argued copiously in his brief of argument
that the Order was wrongly made within the scope of
Order 6 Rule 5 of the Federal High Court Rule. This
Court has read through the records of appeal in this
matter and did not see any application by the
Appellant to set aside the Order of substituted service
or a notice of appeal against the said Order. The issue
of validity of the Order of substituted service was also
not raised by the Appellant in any of the processes he
filed and neither was it canvassed before the Trial
Court. All that the Appellant complained about was
that he was not served personally with the originating
processes and not that the order of substituted
service was invalid.
The Court below further observed as follows at page 561 -
It was not the case of the Appellant that he did not
receive the processes served by the means of
substituted service. It was not his case that the mode
of service shortchanged his ability to respond to the
processes served on him. The Appellant in fact filed
his response to the processes. The complaint of
34
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7) LP
ELR-42
349(
SC)
the Appellant on the issue of substituted service is
thus phantom and esoteric and not real. It will not be
countenanced by this Court.
On this head of complaint, the Appellant submitted that the
eventual service in Kano is irrelevant; and that the said
Order of substituted service cannot be twisted as an
amendment of the address of service OR that endorsement
of the address for service outside jurisdiction was for fun,
which brings to bear the importance of an attempt at
personal service before making any order for substituted
service.
He further argued that the Parties cannot waive the fatal
non-compliance with the statutory mandatory provision of
Section 97 of the Sheriffs and Civil Process Act and that
any party can raise same as it is not waivable; that he
promptly took up the challenge because his complaint is
not only about service as in Odu'a v. Talabi (supra), but
also a fundamental substantive jurisdiction issue (relating
to issuance) which can be raised by any party or by the
Court suo motu, as Parties cannot by consent or
acquiescence confer jurisdiction on a Court - Odu'a v.
Talabi (supra), Owners of MV "Arabella" v. NAIC
(supra), Elugbe
35
(201
7) LP
ELR-42
349(
SC)
V. Omokhafe (2004) 11-12 SC 60, Mobil Producing
Nig. Unlimited & Anor v. Monokpo & Anor (2003) 12
SC (Pt.11) 50.
Furthermore, that he is entitled to raise the issue of
jurisdiction because he is not only a party in the case, who
cannot close his eyes to the invalidity of the Originating
Summons, but the objection to the summons will also enure
to his benefits, so the trial Court was right, and the Court
below was wrong to have held that Parties can waive the
mandatory statutory and substantive issue of jurisdiction.
On the question of not raising the issue of substituted
service at the trial Court, and not seeking leave to raise it
at the Court below, he admitted that the "issue was not
clearly raised" and attributed it "to error in the typing". He,
however, submitted that it was raised in the objection,
argued upon and considered (though not determined) by
the trial Court, and that Ground (a) in the Notice of
Preliminary Objection was concluded with “and service of
the process rules”.
He further submitted that the trial Court failed, refused
and or neglected to determine the issue, and the Court
below jettisoned the
36
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7) LP
ELR-42
349(
SC)
consideration of the effect of the failure on an improper
ground; and judicial pronouncement on the issue of
substituted service/personal service was appropriately set
out in M. Khatoun v. Hans Mehr (Nig.) & Ors (1961)
NWLR 27-28, Kida V. Ogunmola (2006) 13 NWLR (Pt.
997) 377 and Abacha V. Kurastic Nig. Ltd. (2014)
LPELR-22703 at 36.
He also contends that the failure of the trial Court to
consider the issue amounts to breach of his right to fair
hearing; and that the Court below ought to have also
considered and determined same, since it has a legal duty
to consider and decide all issues submitted by Parties to an
appeal for consideration, citing Adah V. NYSC (2004)
ALL FWLR (Pt.233) 1850, Ojoh v. Kamalu (2005) 18
NWLR (Pt.958) 523/556 and FMH v. CSA Ltd. (2009) 9
NWLR (Pt. 1145) 193/220-1.
He added that by dint of Section 22 of the Supreme Court
Act and Yusuf v. Obasanjo (2003) 16 NWLR (Pt. 847)
554, Odedo v. PDP (2015) 6 SC (sic), this Court can step
in, assume jurisdiction over the issue and make such or
"any order necessary for determining the real question in
controversy in the appeal" -Nwadike V. Ibekwe (1987)
11-12 SCNJ 72, Inakoju V.
37
(201
7) LP
ELR-42
349(
SC)
Adeleke (2007) 4 NWLR (Pt. 1025) 423, Amaechi V.
INEC (2008) 5 NWLR (Pt. 1080) (sic). Furthermore that
-
The real question is, was (he) and the 2nd to 4th
Respondents properly served? No. There was no service or
personal service. No attempt at service first. See Kida V.
Ogunmola (supra). Consequently, the purported service
on (him) as well as 2nd to 4th Respondents ought to be set
aside.
The first Respondent, relying on the decision of this Court
in Chime V. Chime (2001) FWLR (Pt. 39) 1457, insists
that the Appellant has no locus whatsoever to challenge the
service of the said process on the second and third
Respondents. He argued that the said Respondents did not
file any process at the trial Court to challenge its
jurisdiction, and did not file any notice or ground of appeal
against its decision; and that the Appellant cannot raise the
issue of non-compliance with Section 97 and 99 of the
Sheriff and Civil Process Act because they are made for the
benefit of persons residing outside jurisdiction.
Furthermore, that he failed to distinguish between
jurisdiction of Court (i.e. subject matter jurisdiction;
qualification of its members) and the
38
(201
7) LP
ELR-42
349(
SC)
issues pertaining to procedural jurisdiction - Hassan V.
Aliyu (2010) 7 MJSC 1, Ketu & anor. V. Onikoro &
Ors. (1984) 10 SC 265; that the case of Elugbe V.
Omokhafe (supra) which he cited, is not applicable as it
touches on the substantive jurisdiction of the Court and
that even if that Issue was raised in his own Affidavit, as he
said, it will not be considered as valid objection for the
following reasons-
(1) Objections and legal arguments are not raised in an
affidavit - Section 115 (2) of the Evidence Act 2011 and
Abiodun V. A-G, Federation (2007) 15 NWLR (Pt.
1057) 359 cited.
(2) The lower Courts were bound by the prayers as
contained on the face of the Preliminary Objection -
Sentinel Ass. Co. Ltd. V. SGBN (1992) 2 NWLR (Pt.
224) PG 495 @ 503.
Furthermore, that M. Khatoun v. Hans Mehr (Nig.) &
Ors (supra) cited by him was not decided based on the
Federal High Court Rules, 2009.
He submitted that Order 6 Rule 5 (a) and (b) of the 2009
Rules, provides how substituted service of Court's
processes are affected, and the Appellant did not say
anything on it; that his entire argument is nothing but
academic exercise; and that the cases
39
(201
7) LP
ELR-42
349(
SC)
he cited do not apply to the facts and circumstances of this
case, and should not be applied across the board, citing
Emeka V. Okadigbo (2012) 18 NWLR (Pt. 1331) (sic),
wherein Rhodes-Vivour,. JSC, stated as follows -
Facts have no views - - the rules of stare decisis don't
allow Courts to apply the ratio of a case across the
board with no regard to the facts of the case before
them.
On its part, the Second Respondent submitted that the
service can, at best, be said to be irregular, the process
being served on a branch of said Respondents and not the
headquarters, which can be waived, as it was done in this
case - Compagnie Generale De Geophysique (NILT)
CGG Nig. Ltd. Vs. Aminu (2015) LPELR-24463 (SC)
cited.
Where does one start? The arguments are convoluted
indeed, but a good starting point is Order 6 Rule 5 (a) to (e)
of the 2009 Rules, dealing with substituted service, and
Order 6 Rule 5 (a) and (b) reads,
Where it appears to the Court (either after or without an
attempt at personal service) that for any reason personal
service cannot be conveniently effected, the Court may
order that service be effected either -
(a) By delivery of
40
(201
7) LP
ELR-42
349(
SC)
the document to an adult person at the usual or last
known place of abode or business of the person to be
served; or
(b) By delivery of the document to some person being
an agent of the Person to be served, or to some other
person, on it being proved that there is reasonable
probability that the document would in the ordinary
course, through that agent or other person, come to
the knowledge of the person to be served.
There it is - the trial Court may order substituted service
either after "or without an attempt at personal service".
The word "may'' makes room for the exercise of discretion.
lt is an enabling and permissive word and in that sense, it
imposes or gives a discretionary power - see Mokelu V.
Fed. Comm., Works and Housing (1976) All NLR 224.
Judicial discretion is described as a sacred power that
inheres to a judge, and which he should employ judicially
and judiciously - Achi V. Ebenighe & Ors (2013)
LPELR-21884 (CA). Since two cases are not always the
same, this Court does not lay down rules to fetter the
exercise of its discretion or that of the lower Courts. Thus,
a Court cannot be bound by a previous decision to exercise
its
41
(201
7) LP
ELR-42
349(
SC)
discretion in a regimented way, because that would be
putting an end to discretion - Odusote V. Odusote (1971)
NSCC (Vol. 7) 231, Ajuwa & Anor v. Shell Petroleum
Dev. co. Nig, Ltd. (2011) 18 NWLR (Pt.1279) 797 SC.
What is clear in this case is that the trial Court had an
option to grant the first Respondent's prayer for substituted
service before any attempt was made to effect personal
service on the Appellant or not. It opted to grant the
prayer, and the effect thereof is that the said Originating
Summons, which had not been marked as "concurrent”, did
not require to be so marked because, by the said Order
issued, the process was to be served within jurisdiction and
it was so served.
To have such Order reversed, the Appellant must show that
the trial Court exercised its discretion wrongly or did not
give due weight to relevant considerations, and this
resulted in injustice done to him.
Did he make an issue of the order at the trial Court or
appeal against the said Order to the Court below - that is
now the question? He conceded that "the Issue was not
clearly raised" but insists that it ''was raised in the
objection, argued upon
42
(201
7) LP
ELR-42
349(
SC)
and considered" because -
- Ground (a) in the Notice of Preliminary Objection
concluded with "and service of the process rule”;
- Paragraph 4 (c) and (d) of the Affidavit in support of the
Notice of Preliminary Objection raised the issue of service;
- At the hearing of the objection, the first Respondent's
counsel objected that the objection was "not on issue of
personal service", and his own counsel argument before
and after that objection shows that the Issue of personal
service was raised and argued; and that
- The sole issue raised by the trial Court while considering
the objection shows that the issue of personal service was
obviously included i.e.
"Whether the Plaintiff's non-compliance with Section 97 of
the Sheriffs and Civil Process Act had robbed this Hon.
Court of its jurisdiction to adjudicate on its claims and non-
service of the originating process personally on the 2nd
Defendant/Applicant, and non-service [at] Head office of
the 1st and 3rd Defendants as they are both residing at
Abuja outside jurisdiction of this Court".
Obviously, the Appellant is grasping at straws and flimsy
ones at that.
To start with,
43
(201
7) LP
ELR-42
349(
SC)
Ground (a) in the Notice of Preliminary Objection merely
states that the Originating Summons was neither endorsed
nor marked as required by the Sheriffs and Civil Process
Act and the "Enforcement of Judgment and Service of the
Process Rules", which cannot by any stretch of imagination
be equated with challenging the Order of substituted
service of the process that was served on him.
And he only averred in the said Paragraphs 4 (c) and (d)
that he was never served with the process personally; and
that the processes "served on the 1st and 3rd Defendants
were not properly served".
Again, these averments in the Affidavit in support of the
said Notice of Preliminary Objection say nothing about the
said Order for substituted service that resulted in the
service of the said process.
He also relies on the arguments canvassed by counsel at
the hearing of the Objection but it is settled that arguments
of counsel, which are designed to assist the Court, are not
binding on the Court - Oruboko V. Oruene (1996) 7
NWLR (Pt. 462) 555. lf the argument is not binding on
the Court, how is it expected to step in and replace a clear-
cut objection challenging a valid
44
(201
7) LP
ELR-42
349(
SC)
Order made by a trial Court?
Obviously, the Court below was right that all that the
Appellant complained about was that he was not served
personally with the said process; not that the Order of
substituted service was invalid.
That aside, the Appellant also contends that he had every
right to challenge the validity of the Originating Summons
because non-compliance with that provision of the Sheriffs
and Civil Process Act is not waivable as it touches on the
substantive jurisdiction of a Court, which brings to question
its distinction with procedural jurisdiction.
A litigant may submit to a procedural jurisdiction of the
Court, but no litigant can confer jurisdiction on the Court
where a Statute or the Constitution says that the Court
does not have jurisdiction. Thus, while substantive
jurisdiction of the Court cannot be waived, a party can
waive a matter relating to procedural jurisdiction of the
Court, and this is usually determined from reliefs sought in
the process - Mobil Prod. (Nig) UnLtd. v. LASEPA
(2002) 18 NWLR (Pt. 798) 1 SC.
In other words, irregularity in the exercise of jurisdiction
should not be confused with a total lack of
45
(201
7) LP
ELR-42
349(
SC)
jurisdiction - see Mobil Prod. (Nig.) UnLtd. V. LASEPA
(supra) wherein Ayoola, JSC, explained that-
Notwithstanding that, sometimes, the distinction
between substance and procedure is blurred, it is
generally accepted that matters (including facts),
which define the rights and obligations of the parties
in controversy, are matters of substance defined by
substantive law, whereas matters, which are mere
vehicles, which assist the Court ... in going into
matters in controversy or litigated before it, are
matters of procedure regulated by procedural law.
Facts, which constitute the cause of action, are
matters of substance and should be pleaded, whereas
facts, which relate to how a party is to invoke the
jurisdiction of the Court for a remedy pursuant to his
cause of action, is a matter of procedure outside the
realms of pleadings. This distinction was stated thus
in Halsbury’s law of England, Vol. 8(1), 4th Edition,
para. 1066:
Generally speaking, it may be said that substantive rules
give or define the right, which it is sought to enforce, and
procedural rules govern the mode or machinery by which
the right is enforced.
In this case,
46
(201
7) LP
ELR-42
349(
SC)
there is no question that contrary to his vehement stand,
the Appellant's Objection was basically a challenge to the
procedural jurisdiction of the Court rather than a challenge
to its substantive constitutional or statutory jurisdiction to
entertain the said Suit – see Adegoke Motors Ltd. V.
Adesanya (1989) 3 NWLR (Pt. 109) 250 SC.
His Objection was a complaint against the competence of
the trial Court to entertain the Suit because the Originating
Summons was not endorsed or marked as required by the
said Act and Rules, which touches on the procedural rules
that got Parties to the Court, and nothing whatsoever on
the facts that led to the cause of action or substance of the
Suit filed by the first Respondent. Any defect amounted to a
mere irregularity that can be waived by the Parties.
Was the said irregularity in this case waived? This Court
nailed this issue to the ground in Adegoke Motors Ltd. V.
Adesanya (supra), wherein it stated categorically that in
similar circumstances like this, the filing of a memorandum
of appearance, as was done in this case, constitutes a
waiver of any irregularity, and constitutes a submission to
the
47
(201
7) LP
ELR-42
349(
SC)
jurisdiction of the Court. In that case, Oputa, JSC, observed
-
A writ of summons (valid or invalid is immaterial at
this stage) was served on the Defendants. The
Defendants could, if they wanted to either:-
(i) Enter an appearance on protest; or
(ii) Enter a conditional appearance and;
(iii) Then file a Motion asking the Court seised of the
matter ... to set aside the purported Writ and the
purported service on the ground of essential
invalidity of both Writ and Service.
The Defendants did not do this. Rather they entered
an appearance through their Solicitor... This implied
that they wanted and intended to contest the case of
the Plaintiffs.
In this case, the Appellant entered a conditional
appearance and also filed a Counter-Affidavit, which means
he waived the irregularity that he complained of, and had
submitted to the jurisdiction of the Court.
The last question is whether he had any business objecting
in the first place? His address for service on the process
was in Kano, and he was served in Kano, within
jurisdiction. The second and third Respondents had their
addresses for service on the process at Abuja, outside
48
(201
7) LP
ELR-42
349(
SC)
jurisdiction, and by the said Order of substituted service,
they were both eventually served in Kano State, within
jurisdiction.
The second and third Respondents did not object or
complain; they submitted to the jurisdiction of the trial
Court, and kept quiet.
It is the Appellant, who was not affected by the service
within jurisdiction instead of outside jurisdiction, as
specified in the process, that took on the challenge and
fought the battle from the trial Court to the Court below,
and finally to this Court. Was he right to do so?
I will just say that it was none of his business, and my
response is supported by decisions of this Court - see
Chime V. Chime (supra), cited by first Respondent,
wherein this Court, per Wali, JSC, stated -
49
(201
7) LP
ELR-42
349(
SC)
It is not in dispute that neither 1st Respondent nor
the 3rd Respondent complained against non-service
of the Court processes... or any other order made. It
does not, therefore, lie in the mouth of the Appellants
to complain on their behalf. It is abundantly clear
that neither the 1st nor 3rd Respondents complained
against non-service of any Court process on him. The
Court of Appeal was perfectly right when it stated-
For a party to a suit to apply for the proceedings to be
nullified by reason of failure of service, where service
is a requirement, it must sufficiently be established
that he or she has not been served in respect of the
proceedings and that the order made therein affects
him. It is not --open to every party to the proceedings
to make such an officious complaint. If such
complaint is sustainable, it will yield startling results.
Thus, an aggrieved Plaintiff-- would be enabled to
appeal against a judgment on the technical ground
that a party to the proceedings has not been served
same process.
In this case, the Appellant is not a Knight in shining armor,
and the second and third Respondents did not need him to
fight their battles. The irony is that the second Respondent
that he was fighting for has filed briefs supporting
decisions of the two lower Courts against him.
50
(201
7) LP
ELR-42
349(
SC)
In the circumstances, it will be a disservice to the justice
system to allow the Appellant get away with what did not
concern him at all, and it goes without saying that this
issue is resolved against him.
The next main issue is whether the trial Court had
jurisdiction over this matter. On this score, the Court below
held as follows -
Reading through the Originating Summons of the
first Respondent, it is clear that the gravamen of the
question submitted for determination of the lower
Court was an inquiry into the propriety or validity of
the action of the third Respondent, INEC, in
publicizing, recognizing and including the name of
the Appellant and/or dealing with the Appellant as the
candidate of the second Respondent (APC) to contest
the election into Kano State House of Assembly
representing Gabasawa constituency of Kano State
scheduled to take place on 28/2/2015 when he, first
Respondent, was the winner of the
51
(201
7) LP
ELR-42
349(
SC)
primary election conducted by the second
Respondent. In Gwede v. INEC (2014) 18 NWLR (Pt.
1438) 56 the Supreme Court stated that the
publication of the list of candidates to contest an
election by the electoral body was an administrative
action. Thus, the question was a challenge to an
administrative action of an agency of the Federal
Government. It was the case of the First Respondent
in the affidavit in support of the Originating
Summons - - that he scored the majority of the lawful
votes cast at the primary election held by second
Respondent on 2/12/2014 in Gabasawa LGA - - for the
purpose of presenting a candidate of the party for
election - - to represent Gabasawa Constituency - -
but rather than submit his name to the third
Respondent as the candidate of second Respondent
(APC) to contest the election - - scheduled to take
place on 28/2/2015, second and fourth Respondent
substituted his name with the name of the appellant
and consequent on which the third Respondent
published the name of the Appellant as the candidate
for the election. The first relief sought by the first
Respondent was a mandatory order against the third
Respondent, the independent
52
(201
7) LP
ELR-42
349(
SC)
National Electoral commission, to include his name in
the list of candidates while the third relief was for an
injunctive order against the second, third and fourth
Respondents restraining them from recognizing,
publishing or dealing with the Appellant as a
candidate representing Gabasawa Constituency of
Kano State in the scheduled election. The third
Respondent is an agency of the Federal Government
and the Supreme Court held in similar circumstances
in the case of Gbileve v Addingi (2014) 16 NWLR (Pt.
1433) 394 that such a suit was properly instituted in
the Federal High Court. This Court is bound by this
decision of the Supreme Court and it hereby resolves
that the lower Court had jurisdiction to entertain the
action of the first Respondent.
It is settled that is the Plaintiff's claims that determine
jurisdiction; that is to say, it is the claim before the Court
that has to be looked at to ascertain whether it comes
within the jurisdiction conferred on it - see Elelu-Habeeb
V. A.G. Fed. (2012) 13 NWLR (Pt. 1318) 423 SC.
In this case, the first Respondent claimed the following
three reliefs -
1. An order of this Hon. Court directing the
53
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7) LP
ELR-42
349(
SC)
3rd Defendant to publicize, recognize and include the name
of the Plaintiff as the 1st Defendant's rightful candidate for
Gabasawa Constituency of Kano State House of Assembly
in the general election scheduled to take place on
28/2/2015.
2. A declaration of Court that the Plaintiff is the rightful
candidate of the first Defendant who will represent
Gabasawa Constituency of Kano State House of Assembly
in the general election scheduled to take place on
28/2/2015, having scored the majority of votes cast at the
primary election conducted by the 1st Defendant on
2/72/2014 in Gabasawa Local Government Area of Kano
State for the purpose of producing a candidate of the first
defendant (A.P.C) for the election.
3. An order of Court restraining the Defendants either
through their agents, privies or whosoever claiming on
their behalf, from recognizing, treating, publishing, listing
or considering the name of 2nd Defendant as the 2nd (sic)
Defendant's candidate to represent Makodo Constituency
(sic) of Kano House of Assembly in the general election
scheduled to take place on 28/2/2015.
The Appellant addressed this issue from pages 17 to 23 of
his brief,
54
(201
7) LP
ELR-42
349(
SC)
and he is saying that since first Respondent's grievance is
against the nomination or substantially arises from the
Party's primary election, it is the State High Court that has
jurisdiction to entertain the suit; that the trial Federal High
Court was wrong to assume jurisdiction, entertained and
decided the matter; and that the Court below was equally
wrong to hold to the contrary on the face of the outstanding
position of this Court in PDP v. Sylva (2012) 13 NWLR
(Pt.1316) 85.
The first Respondent says that his case at the trial Court is
that there was a primary election conducted by second
Respondent, which was duly monitored by third
Respondent, INEC, and that he scored majority of the
lawful votes cast at the primary election, but third
Respondent refused to recognize and treat him as the
winner and publish his name; and where a Party's claim is
against an administrative action of the Federal Government
or its agency, the proper venue to ventilate his grievance is
Federal High Court.
The second Respondent argued that the reliefs are directed
against the third Respondent’s decision to publish the name
of the Appellant, who the first
55
(201
7) LP
ELR-42
349(
SC)
Respondent said is not a candidate of the second
Respondent, who complied with the Guidelines and Rules of
the second Respondent for the primary election; and the
reliefs fall squarely within the jurisdiction of the Federal
High Court.
This issue has been flogged and over-flogged in political
cases decided by this Court, and the position is pretty well-
settled that any dissatisfied contestant at the primaries is
now empowered by Section 87(9) of the Electoral Act, 2010
(as amended) to ventilate his grievance at the Federal High
Court or High Court of a State or of the Federal Capital
Territory - Lokpobiri V. Ogola & Ors (2015) 10-11
MJSC 74, Jev V. lyortyom (2014) All FWLR (Pt. 747)
749 SC.
In this case, the concurrent findings of the two lower
Courts on this issue cannot be faulted. The trial Court was
right to take on the matter, as the first and third Reliefs,
fall within its jurisdiction.
The final issue is whether the Suit was rightly commenced
by Originating Summons and the Court below rightly found
on affidavits evidence before it, including the question of
forgery. The issue arose from the reasoning and conclusion
of the Court below, as
56
(201
7) LP
ELR-42
349(
SC)
follows-
The second and fourth Respondents deposed to two
Counter Affidavits. In their first Counter Affidavit
deposed to by the Assistant Legal Adviser of the
second respondent, they admitted that the second
Respondent conducted primary election into the Kano
State House of Assembly Gabasawa Constituency and
that both the first Respondent and Appellant
participated in the primary election and that the first
Respondent scored 216 votes while the Appellant
scored 32 votes. However, in the second Counter
Affidavit deposed to by the fourth Respondent, they
changed tune and deposed that no primary election
was conducted by the second Respondent into the
House of Assembly Gabasawa Constituency on
2/12/2014. The Appellant in his Counter Affidavit
deposed that the second Respondent did not conduct
primary election on 2/12/2014 for Gabasawa
Constituency and that no single vote was cast on that
day and that the result sheet attached by the first
Respondent was a forgery as it did not emanate from
the second Respondent and that the report of the
third Respondent on the primary election, was a
concocted result forged on the letter head of the third
Respondent. What
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is clear - - is that the second and fourth Respondents
presented two materially contradictory pieces of
evidence on the issue of conduct of primary election
for the Gabasawa Constituency on 2/12/2014 before
the lower Court through their witnesses and both
pieces of evidence were given on oath. It is settled law
that the consequence of a party presenting such
materially conflicting evidences is that the case of the
party is destroyed and cannot be believed - - - It is
settled law that where a party is shown to have
presented on oath two pieces of evidence which are
materially inconsistent, such a party will be regarded
as unreliable and the totality of his evidence will be
rejected by the Court- - - The second and fourth
Respondents thus had no credible evidence before the
lower Court with regards to the deposition of the
Appellant, his allegation that the result sheet of the
primary election exhibited by first Respondent was a
forgery because it did not emanate from the second
Respondent and that the report of the primary
election of the third Respondent was forged on the
letter head of the third Respondent were
documentary hearsay evidence.
The Appellant
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never said he was an official or employee of either the
second or third Respondent as he did not state in his
affidavit the name of the official or of the person in
the employment of the second Respondent that
informed him that the result sheet did not emanate
from them and or the name of the official or of the
person in the employment of the third Respondent
who told him that the report was forged on their
letter head. This is particularly more so as second
Respondent presented no credible evidence before
the lower Court to challenge the authenticity of the
result sheet and the third Respondent, on its part,
confirmed the authenticity of its report on the
primary election in its counter affidavit. The
deposition of the Appellant on the issue of forgery
was, thus, not credible and admissible evidence. The
result sheet and report of the third Respondent on
the conduct of the primary election supported the
assertion of the first Respondent and of the third
Respondent on the conduct of the primary election by
the second Respondent on 2/12/2014 as against the
bare assertion of the Appellant that no primary
election was conducted. It is clear that there were no
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material conflicts in the credible evidence contained
in the Affidavit of the Parties before the lower Court
on material facts necessary for the resolution of the
issue identified by the lower Court to have warranted
the need for oral evidence. There was, thus, no
obligation on the lower Court to have called for oral
evidence to resolve any conflict. The lower Court was
correct in resolving the issue on the strength of the
affidavit evidence before it. The third issue for
determination is resolved against the Appellant. In
the final analysis, it is the finding of this Court that
the appeal of the Appellant lacks merit and it is
accordingly dismissed. The Cross-Appeal of the third
Respondent is meritorious and it is hereby allowed.
The Judgment of the Federal High Court, Kano
Judicial Division in suit No. FHC/KN/CS/17/2015
delivered by Hon. Justice Fatun O. Riman on
11/3/2015 is hereby affirmed save for the portion that
upheld the right of the Appellant to raise and canvass
the issue of non-compliance by first Respondent with
provisions of Order 6 Rule 13 of the Federal High
Court Rules 2009 and with Section 97 of the Sheriffs
and Civil Process Act.
The
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Appellant's contention is that in the circumstances of this
case, Originating Summons is not the appropriate means of
commencing and determining the Suit; and that even if the
said Counter-Affidavits were contradictory, the proper
thing to do was to call oral evidence.
He also submitted that the Court below preferred
documentary evidence but what is required or suffice at
this stage is oral evidence; that the issue of forgery is an
example brought out to expound the conflict in Affidavit
evidence; and the claim is declaratory in nature, so must be
brought by writ of summons; not originating summons.
The first Respondent submitted that the Court below was
right since the Appellant failed to particularize the
allegation of forgery; that second and fourth Respondents
did not successfully challenge his case so as to warrant
calling oral evidence as they are in a better position to
challenge the validity of the evidence before the Court.
He argued that his case was the one supported by
documentary evidence as rightly pointed out by the Court
below, but the Appellant failed to annex a single document
emanating from second and third Respondents to
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evidence that there was primary election conducted on
8/12/2014 as opposed to him, who placed concrete
evidence of his victory in the primary election that was
conducted or 2/12/2014.
The second Respondent submitted that contrary to his
position, the Court below considered the import of the said
Further and Better Counter Affidavit filed on behalf of
second and fourth Respondents, and since they did not
appeal against same, they are bound by it; that the
Appellant failed to discharge on him to prove his allegation
of forgery beyond reasonable doubt; and he also had a duty
to show, particularly in the face of documentary evidence
presented by the first and third Respondents that the
primary election never held.
By Order 3 Rule 1 (1) of the 2009 Rules, Civil proceedings
at the trial Court may be commenced by Writ or
Originating Summons, etc. As the first Respondent said,
most, if not all, the pre election matters that come to this
Court are initiated by Originating Summons but the
Appellant contends that the writ of Summons is more
appropriate.
The distinction between two modes of commencing an
action boils down to whether there is a serious
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dispute as to facts involved.
Where there is a serious dispute as to facts, a Writ of
Summons must be issued. In other words, where it is
evident from the Affidavit evidence before the Court that
there would be "an air of friction" in the proceedings, an
Originating Summons is no longer appropriate - see NRC
V. Cudjoe [2008] 10 NWLR (Pt.1095) 329 and Famfa
Oil Ltd. V. A.-G. Fed. (2003) 18 NWLR (Pt. 852) 453,
where this Court held-
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 - - 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 pleading 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. lf there are serious disputes
as to facts then a normal Writ must be taken out not
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SC)
Originating Summons – Doherty v Doherty (1968)
NMLR 241.
In effect, Originating Summons is a procedure wherein the
evidence is mainly by way of documents and there is no
serious dispute as to their existence in the pleadings - see
Famfa Oil V. A-G. Fed. (supra).
It is usually heard on affidavit evidence and involves
questions of law rather than disputed issues of fact - see
Inakoju V. Adeleke (2007) 4 NWLR (Pt. 1025) 423,
wherein Tobi, JSC, explained that -
In Originating Summon, facts do not have pride of
place in the proceedings. The cynosure is the
applicable law and its construction by the Court. The
situation is different in a trial commenced by Writ of
Summons where the facts are regarded as holding a
pride of place and the fountain head of the law in the
sense that the facts lead to a legal decision on the
matter. That is not the position in proceedings
commenced by Originating Summons where facts do
not play a central role but an infinitesimal role.
Facts may be inconsequential in proceedings commenced
by way of Originating Summons, which are determined on
affidavit evidence, but it is important that conflicts in the
affidavits
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SC)
are not glossed over - see Gbileve V. Addingi (supra),
where this Court affirmed the legal position stated by
Nwodo, JCA (of blessed memory), as follows –
Where proceedings in a Court are by affidavit
evidence, it is important that conflicts in such
affidavits are not glossed over. The Court is enjoined
to look at the nature of the conflict. When facts are
deposed in an affidavit, the purpose of counter-
affidavit is to contradict those facts and not merely
set up a distinct fact as defence. Where the conflict
arising from affidavit and counter affidavit
depositions are not on material issues, the Court
calling for oral evidence become unnecessary. ln
effect, where the conflicts are not material to the case
or where the facts are inadmissible in evidence, the
Court should not be saddled with the responsibility of
calling oral evidence to resolve the conflict -
Furthermore where conflicting evidence can be
resolved from documentary evidence, the need to call
oral evidence becomes unnecessary.
The bottom line, as far as this case is concerned, is the
observation - "when facts are deposed to in an affidavit, the
purpose of a counter- affidavit is
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to contradict those facts and not merely set up a distinct
fact as defence". In this case, the first Respondent, as the
Plaintiff, averred as follows in paragraphs 23-29 of his
supporting Affidavit -
23. That all the Defendants were fully aware that I am the
only declared winner in the primary election for Gabasawa
Constituency of Kano State House of Assembly conducted
by 1st Defendant in Gabasawa Local Government Area on
the 2/12/2014.
24. That I have applied for certified true copy of the Report
of the said primary election from the 3rd Defendant. A
copy of the said Report is herewith annexed and
marked as Exhibit I.
25. That on (sic) 1st Defendant received and accepted
Exhibit I.
26. That the 1st Defendant’s refusal to submit my name to
3rd Defendant was a ploy to favor some party members
without following due process.
27. That there is no any communication in whatever form
from any of the Defendants against my candidature to date.
28. That I am the only duly nominated candidate of the 1st
Defendant for Gabasawa constituency of Kano State House
of Assembly.
29. That I am still alive and I have not withdrawn nor am I
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incapacitated by any means.
The first Respondent also annexed thereto - the Result
sheet for Party Primaries for State House of Assembly with
his name on it as the declared winner having scored the
highest number of votes cast.
The second and fourth Respondents, as the first and fourth
Defendants, filed a Counter-Affidavit deposed to by "Nura
Zubair", wherein he averred - "the 1st Defendant conducted
primary election"; that the "1st Defendant forwarded the
name of the Plaintiff" to INEC and that the "Plaintiff is the
rightful candidate for the election''.
The same second and fourth Respondents later filed a
Further and Better Counter Affidavit, wherein fourth
Respondent averred –
1. That l am the 4th Defendant in this Suit.
2 That I am the Chairman of the APC Kano, the 1st
Defendant in this Suit.
3. That I have gone through the Counter Affidavit deposed
to by Nura Zubair an Assistant Legal Adviser of the 1st
Defendant on behalf of the 1st defendant and myself.
4. That I did not as the Chairman of the 1st Defendant give
the said Nura Zubair authority to depose to the content of
the Counter Affidavit as they do not represent the true
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position of facts.
5. That I as the Chairman of the 1st Defendant know as a
fact no primary election into the House of assembly of
Gabasawa Constituency was conducted by the 1st
Defendant on the 2nd December, 2014.
6. That the 1st Defendant did not send the name of anybody
to the 3rd defendant in respect of the said Gabasawa House
of Assembly Primary election.
7. That the counter affidavit deposed to by Nura zubair was
done without my consent and knowledge and that of the 1st
Defendant because of breakdown in communication.
8. That paragraph 3 to 7 of this further and better affidavit
represent the true position of facts in this case.
The Appellant, as the second Defendant, filed his Counter
Affidavit, wherein he averred as follows in paragraphs 8 to
11 thereof that-
8. Contrary to paragraph 11 of the Plaintiff's Affidavit
the 1st Defendant did not conduct any primary
election in Gabasawa Constituency.
1. Contrary to paragraph 12 and 14 of the Plaintiff’s
affidavit even, single vote was not cast on the said
2/12/2014 because the 1st Defendant did not conduct any
primary election in Gabasawa constituency.
2. The Plaintiff was
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not declared as the winner of the primary election and the
purported result sheet attached by the Plaintiff is not
an original result but forged result.
3. The result sheet exhibited by the Plaintiff does not
emanate from the 1st Defendant.
The third Respondent filed counter-Affidavits to Counter
Affidavit and Further and Better Counter-Affidavit of 1st
and 4th Defendants.
The third Respondent averred in paragraph 4 (c) of its
counter Affidavit to the 1st and 4th Defendants’ counter-
affidavit that the said “1st and 4th Defendants did not
forward the name of the plaintiff as its candidate to the 3rd
Defendant”. It further averred in paragraph 4 of its
counter-Affidavit to the further and Better Counter
Affidavit-
b) That the 1st defendant conducted its Primary election
into State House of Assembly Gabasawa Constituency on
2/12/2015 and was duly monitored by the 3rd Defendant.
c) That the 3rd Defendant on 25/12/2015 at its National
Headquarters Abuja received Form CF001 from the 1st
Defendant in the name of the 2nd Defendant as its
candidate standing for
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election into State House of Assembly Gabasawa
Constituency. The said Form CF001 is hereby annexed
and marked as Exhibit A3.
So, on one side of the divide are depositions by the first
Respondent and third Respondent that are supported by
documentary evidence, and on the other side of the divide
is the Appellant's bare assertion that the second
Respondent did not conduct any primary election. The
second and fourth Respondents, who should have clarified
the issue of whether there was a primary election or not,
failed to do so, and instead, they took divergent positions in
their Affidavit evidence.
As the first Respondent rightly submitted, the said
Respondents did not apply to have the evidence of Nura
Zubair discountenanced, and allowed the trial Court to be
left with the contradictory evidence that the primary
election took place and that it was NOT conducted.
Apart from the fact, as the first Respondent submitted, that
it is "logically inconceivable" for the Party to refuse to hold
the primaries, they cancelled themselves out, and their
evidence was worthless.
The law insists that where there are material contradictions
in the evidence
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adduced by a Party, the Court is enjoined to reject the
entire evidence as it cannot pick and choose which of the
conflicting version to follow - Kayili V. Yilbuk & Ors
(2015) LPELR -24323(SC).
A piece of evidence is contradictory to another when it
asserts or affirms the opposite of what that other asserts.
Put another way, evidence contradicts evidence, when it
says the opposite of what the other evidence says, not on
just any point, but on a material point - Odunlami V.
Nigerian Army (2013) LPELR-20701(SC). In this case,
the first Respondent says the Party conducted the primary
election.
The second and fourth Respondents admitted that fact in
their joint Counter Affidavit but stated the opposite in their
Further and Better Counter Affidavit - that no primary
election was conducted. Without question, the Court below
was right to reject the evidence.
The Appellant alleged in his Counter - Affidavit that the
Result Sheet of the said primary election exhibited by the
first Respondent was a forgery because it did not emanate
from second Respondent, and that the third Respondent's
Report was also forged. However Section 115 (3) and (4) of
the
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Evidence Act, 2011, provides that -
(3) When a person deposes to his belief in any matter
of fact, and his belief is derived from any source other
than his personal knowledge, he shall set forth
explicitly the facts and circumstances forming the
ground of his belief.
(4) When such belief is derived from information
received from another person, the name of his
informant shall be stated, and reasonable particulars
shall be given respecting the informant, and the time,
place and circumstances of the information.
Obviously, the Appellant did not make out a genuine
allegation of forgery to warrant an order for oral evidence
for him to prove same - how did he get to know that the
said two documents were forged?
If someone told him, what are the person's particulars?
What are the details - the time, place, and circumstances of
the said information? There was nothing - no particulars to
substantiate the allegation.
Obviously, the Appellant's disagreements with the decision
of the Court below are of no substance, and it's sometimes,
an attempt to turn the law on the head. Take for instance,
his argument that the Court below was wrong to rely on
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documentary evidence; not oral.
It is an elementary principle that documentary evidence is
used as a hanger to test veracity of evidence, whether oral
or by affidavit - see Gbileve V. Addingi (supra), Kimdey
V. Mil. Gov. Gongola (1988) 2 NWLR (Pt.77) 445 and
Fashanu V. Adekoya (1974) 4 SC 83. Thus, documentary
evidence is a hanger to base other pieces of evidence.
In political cases, the only proof of winning of an election is
the election result duly issued; mere averments cannot
stand up to that. The Court below was right to place a
greater value on documentary evidence, which bears
eloquent testimony to what happened - See Aiki V. ldowu
(2005) 9 NWLR (Pt 984) 47, wherein it was observed-
Documents when tendered and admitted in Court are
like words uttered and do speak for themselves. They
are even more reliable and authentic than words from
the vocal cord of man because they are neither
t rans ient nor sub jec t to d i s tor t ion and
misinterpretation but remain permanent and
indelible through the ages. The documents bear
eloquent testimony to what happened.
In this case, the first and third Respondents annexed
documentary evidence to their
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respective Affidavit and Counter-Affidavits, which support
the assertion of both Respondents that a primary election
was conducted, and that the first Respondent won the said
election.
The Court below was, therefore, right to conclude that
there were no material conflicts in the credible evidence
contained in the Affidavits of the Parties before the trial
Court on the material facts necessary for the resolution of
the issue the trial Court identified to have warranted the
need to call oral evidence to resolve any conflict.
The finding of the Court below on this issue cannot be
faulted As it put it "the trial Court was correct in resolving
the issue on the strength of the affidavit evidence before it"
l agree wholeheartedly.
The end result is that this Appeal lacks merit in its entirety,
and it is hereby dismissed. The Judgment of the Court
below is affirmed. Each Party will bear their own costs.
IBRAHIM TANKO MUHAMMAD, J.S.C.: I read before
now the judgment just delivered by my learned brother,
Augie, J.S.C. I agree with the reasoning and conclusion that
the appeal lacks merit and it should be dismissed. I dismiss
the appeal and abide by orders
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made in the lead judgment.
MARY UKAEGO PETER-ODILI, J.S.C.: I am in complete
agreement with the judgment just delivered by my learned
brother, Amina Adamu Augie JSC and to place on record
my support for the reasoning. l shall make some comments.
During the Kano State High Court strike, the 1st
respondent (as plaintiff) filed this suit before the Federal
High Court, Kano by way of originating summons, claiming
that he was the winner of the 2nd respondent’s Primary
election and must be the candidate to be recognized for the
election. The 3rd respondent followed the 1st respondent’s
position.
On the other side, the 2nd (APC) and 4th (Party chairman)
respondents maintained that there was no primary election
at all and that the results being waved by the 1st and 3rd
respondents were forged.
FACTS
Both the appellant and the 1st respondent participated in
the primary election conducted by the 2nd respondent on
the 2nd day of December, 2014 which was duly monitored
by the 3rd respondent. The primary election was for the
selection of a candidate to represent the Party as its
candidate for Gabasawa Constituency of the Kano State
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House of Assembly in the 2015 general election. The 1st
respondent won the said primary election by scoring 216
votes against the appellant who only scored 32 votes. The
3rd respondent recognized the name of the appellant as the
candidate for Gabasawa Constituency of the Kano State
House of Assembly.
The 1st respondent was left with no option than to
approach the Court for redress. He approached the Federal
High Court, Kano Judicial Division, hereinafter called "the
trial Court". The 1st respondent’s question for
determination before the trial Court was whether the 3rd
respondent can publicize, recognize and include the name
of the appellant or deal with him as the candidate of the
2nd respondent (APC) to contest election into Kano State
House of Assembly representing Gabasawa Constituency of
Kano State scheduled to take place on 28th day of
February, 2015 the 1st respondent having scored the
majority of the lawful votes cast at the primary election
held by the 2nd respondent on the December, 2014 in
Gabasawa Local Government Area of Kano State for the
purpose of presenting a candidate of the party for election
into Kano State House of Assembly to
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represent Gabasawa Constituency of Kano State."
The trial Court found as a fact that there was a valid
primary election conducted by the 2nd respondent and duly
monitored by the INEC directed the said INEC to consider,
recognize and treat the 1st respondent as duly nominated
candidate of the 2nd respondent in the general election for
Gabasawa Constituency of Kano State House of Assembly.
At the trial Court, issue Pertaining to non-compliance with
Section 97 of the Sherriff and Civil Processes Act was
raised by the appellant after he had filed all his necessary
and requisite Court Processes.
The appellant was residing within the jurisdiction of the
trial Court at the time of the filing and service of the
originating processes and he was equally served within the
jurisdiction. All other respondents were served in Kano
within the jurisdiction. The 2nd and 4th respondents were
served through the Kano State Chapter Legal Adviser (the
current Hon. Attorney General of Kano State) while the 3rd
respondent was served through its Kano office. The 2nd
and 4th respondent did not file any application to challenge
the service or any purported irregularity of
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the trial Court. The appellant, who was served within
jurisdiction, was not affected in any way by the purported
non-compliance with Section 97 of the Sheriff and Civil
Process Act.
The appellant dissatisfied with the decision of the trial
Court appealed to the Court of Appeal "hereinafter referred
to as the lower Court". On the other hand, the 1st
respondent cross-appealed against the portion of the
judgment of the trial Court which said the appellant can
raise the issue of non-compliance with Section 97 of the
Sheriff and Civil Processes Act. The lower Court dismissed
the appellant’s appeal and allowed the 1st respondent's
cross appeal. The appellant has now appealed to this Court
against the concurrent findings of the two lower Courts.
The learned counsel for the appellant, Nureini Jimoh Esq on
the 1st day of February, 2017 date of hearing adopted the
brief of argument of the appellant filed on the 7/8/2015 and
reply briefs to the briefs of 1st and 2nd respondents
respectively filed on the 25/11/2016 and 16/17. He distilled
five issues for determination which are stated hereunder,
viz:
1. Whether the lower Court was right to have held
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that leave to issue the originating summons and leave
to mark same for service outside jurisdiction are not
necessary, not mandatory, has been waived by 2nd
and 3rd respondents and cannot be raised by the
appellants at all. (Ground i to iv.)
2. Whether the lower Court rightly held that issue of
substituted service and personal service was not
raised both at the trial Court and before the lower
Court, and indeed the issue of mode of service is
phantom, Esoteric and not real? (Grounds v and vi)
3. Whether the lower Court rightly ignored the failure
to mark the summons as "concurrent" and trial
Court’s non-consideration of the "Further and Better
Counter-Affidavit in this suit. (Grounds ix & x)
4. Whether the lower Court was right to hold that the
trial Federal High Court was competent and did
competently assume jurisdiction in this suit"
(grounds vii & viii)
5. Whether in the circumstances of this case, the suit
was rightly commenced by originating summons and
the lower Court rightly found on the affidavit before it
including issues of forgery. (Grounds xi, xi, xiii, xiv
and xv).
Usman Umar Fari Esq. of counsel for the 1st
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respondent adopted his brief of argument filed on
11/5/2016 and deemed filed on 1/11/2016. He formulated
five issues for determination of the appeal which are thus:
1. Whether in the circumstances of this case the leave
of the trial Court to issue and mark the originating
summons which was served jurisdiction on the 2nd
and 3rd respondents was necessary and whether the
appellant can raise same. (Grounds I, II, III. IV)
2. Whether the lower Court was right when it held
that the appellant did not raise the issue of the
validity of the order of substituted service before the
trial Court.
3. Whether in the circumstances of this case there
was failure from the part of the 1st respondent to
have marked the originating summons as concurrent
(Grounds XIV)
4. Whether the trial Court (Federal High Court) has
jurisdiction over this matter - (Grounds vii and viii),
5. Whether the lower Court was right when it held
that the trial Court was right when it decided the
matter before it based on the affidavit evidence
placed before it. (Grounds No x, xi, xii and xiii xv).
Learned counsel for the 2nd respondent, R. A. O. Adegoke
Esq. adopted its
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brief of argument filed on 12/1/2012 and he raised three
issues for determination of the appeal which are as follows:
1. Whether the lower Court was right when it held
that the originating summons was competent and
upheld the decision of the trial Court which dismissed
the appellant preliminary objection. (Grounds 1, 2, 3,
4, 5, 6, and 9 of the Notice of Appeal.)
2. Whether the lower Court was right when it held
that the trial Court rightly assumed jurisdiction in
this suit. (Grounds 7, 8 and 10 of the Notice of
Appeal)
3. Whether the lower Court considered the Further
and Better Counter Affidavit of the 2nd and 4th
respondents and rightly upheld the decision of the
trial Court that granted all the reliefs sought in the
originating summons. (Grounds 11, 12, 13, and 14 of
the Notice of Appeal).
Yusuf Asamah Kadiri Esq. of counsel for the 3rd respondent
adopted its brief of argument filed on 30/1/17 and deemed
filed on 1/2/17. He adopted the issues as contained in the
appellant’s brief of argument and restated the impartiality
of the 3rd respondent as guided by the admonition of this
Court inA.G. Federation v Abubakar (2007) 10 NWLR
(Pt.
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1041) 1.
Mrs. H. O. Ben Umar of counsel for the 4th respondent
adopted her brief of argument filed on the 16/11/2017. She
adopted the issues as crafted by the appellant and sought
to keep within the boundaries on the jurisdictional point in
the dispute.
ISSUE 1, 2 AND 3
These ask the questions whether leave to issue originating
summons, leave to serve same and mark same for service
outside jurisdiction are neither necessary nor mandatory
and waived by 2nd and 3rd respondents and cannot be
raised.
Also whether the issue of substituted service and personal
service was not raised at the two Courts below.
Again if the lower Court rightly ignored the failure to mark
the summons as "Concurrent" and the trial Court’s non-
consideration of the further and Better Counter-Affidavit in
this suit?
Canvassing the standpoint of the appellant, learned counsel
contended that the decision of the Court below cannot be
supported in fact and law. That before a party would be
granted leave to serve and issue the originating process for
service out of jurisdiction there shall be affidavit or other
evidence stating that in the belief of the deponent
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the plaintiff had a good cause of action and showing in
what place or country the defendant is or probably may be
found and the grounds upon which application is made. He
cited Section 9 of the Federal High Court Act: Order 56
Rule 8 of the Federal High Court (Civil Procedure) Rules
2009; Order 6 Rule 14 of the Federal High Court (Civil
Procedure) Rules 2009; Owners of Mv "Arabella" v NAIC
(2008) 11 NWLR (Pt. 1097) 182: Nwabeze & Anor. v
Justice Obi-Okoye (1988) 4 NWLR (Pt. 91) 664.
That leave to issue and serve are both coterminous,
mandatory and condition precedent to the exercise of the
Court's jurisdiction on the defendants.
Going on further it was submitted for the appellant that
there is no dispute that summons originally meant for
service in FCT, Abuja outside jurisdiction of the Federal
High Court, Kano but the summons does not contain such
endorsement. He referred to Section 97 of the Sheriffs and
Civil Process Act.
That this case at hand is strictly and mainly an objection to
the competency of the suit premised on the ground that the
originating summons was neither endorsed nor marked as
required by the Sheriffs and Civil Process
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Act.
Learned counsel for the appellant further contended that
good service, if at all as in this case cannot invalidate a
valid process. That the parties concerned cannot waive the
fatal non-compliance with the statutory mandatory
Provision of Section 97 of the Sheriffs and Civil Process
Act. He cited Oodua v Talabi (1997) 10 NWLR (Pt.
5231) 1.
That the issue of the competence of the appeal and
jurisdiction of Court can be raised by any party and not
necessarily by the Party who raised it at the lower Court.
He cited Elugbe v Omokhafe (2004) 11 - 12 SC 60 at
65; Mobi Producing Nig. Unlimited & Anor v Monokpo
& Anor (2003) 12 SC (Pt. 11) 50.
The appellant also questioned the non-consideration of the
issue of substituted service which went to the competence
of the process and impugned on the appellants’ right to fair
hearing as the Court is obligated to tackling all issues
placed before it.
He cited Korun Ltd v International Trust Bank Plc
(2010) LPELR - 4408; Kida v Ogunmola (2006) 13
NWLR (Pt. 997) 377 at 399: Abacha v Kurostic Nig
Ltd. (2014) LPELR - 22703 at page 36 etc.
In responding, learned counsel for the 1st
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respondent stated that the trial Court was right when it
held that the Federal High Court Rules 2009 did not make
provision for leave before issuance of writ of summons
which will be served out of jurisdiction. He cited Ault
Wiborg (Nig) Limited v Nibel Industries Ltd (2010) 5 -
7 MJSC (Pt. III) 155.
That the appellant cited Section 97 of the Sheriff and Civil
Process Act out of context. That the appellant lacks the
locus standi to challenge the order of the trial Court
ordering service on the 2nd and 3rd respondents. He
referred to Babatunde v Olatunde (2000) 2 NWLR (Pt.
646) 568; Chime v. Chime (2001) FWLR (Pt.39)1457
at 1470.
It was contended for the 1st respondent that these issues
now raised are not raised in any affidavit and so cannot be
considered as a valid objection.
He cited Ishola Balogun Ketu & Anor. V. Chief Wahabi
Onikoro & Ors (1984) 10 SC 265 at 267; Abiodun v
A.G. Federation (2007) 15 NWLR (Pt 1057) 359.
The learned counsel for the 2nd respondent went along the
line of reasoning of the 1st respondent and that the
appropriate parties were served by order of the trial Court
and no appeal against the order directing
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substituted service and no leave to serve outside
jurisdiction required. He cited B. B. Apugo & sons Ltd v
OHMB (2016) 13 NWLR (Pt. 1529) 206 at 248.
The learned trial judge held thus:
"It is obvious from the case of Touton Sa v Grimaldi
Compagnia Di Nargo Zioni Spa (2011) 4 NWLR (Pt.
1236) 1 and Agip (Nig) 238 relied on by counsel for
the submission that counsel to the appellant confused
the provisions of the Federal High Court (Civil
Procedure) Rules 2009. Order 6 Rule 12 (1) of the
2000 Rules stated very clearly that "No Writ which, or
notice of which, is to be served out of jurisdiction
shall issue without leave of Court." This Court is not
aware of any such corresponding Provision in the
2009 Rules and none was referred to by counsel to
the appellant. Order 6 Rules 13 to 17 of the Federal
High Court (Civil Procedure) Rule 2009 talks about
leave to serve originating processes out of jurisdiction
and not leave to issue. The proceedings in this matter
were governed by the provisions of the Federal High
Court (Civil Procedure) Rule 2009 and there was no
obligation on the first respondent to obtain leave to
issue the originating summons it took
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out in this matter".
On its own part, the Court of Appeal or Court below
affirmed what the trial Court had done and stated as
follows:
"The appellant also canvassed the issue of the
invalidity of the Order of substituted service made by
the trial Court on the February 2015... The issue of
validity of the order of substituted service was also
not raised by the appellant in any of the processes he
filed and neither was it canvassed before the trial
Court. All that the appellant complained about was
that he was not served personally with the originating
processes and no that the order of substituted was
invalid".
The position of the appellant sure presents very curious
angles, firstly is the contention that the service of the
processes of the trial Court on the 2nd and 3rd respondent
in Kano is wrong even though that service was done in
accordance with the order of the trial Court of 6th
February, 2015. Secondly there was no challenge to that
Court order by either the appellant or any of the
respondents.
The stance of the appellant clearly goes against the basic
principle that orders of Court are deemed valid until set
aside by the same Court or
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on appeal. This position is well stated by this Court in the
case of Babatunde v Olatunde (2000) 2 NWLR (Pt.
646) 568.
"A judgment of a Court of competent jurisdiction
remains valid and binding, even where the person
affected by it believes that it is void, until it is set
aside by a Court of competent jurisdiction. The
position therefore is that a person who knows of a
judgment, whether null or void, given against him by
a Court of competent jurisdiction cannot be permitted
to disobey it. His unqualified obligation is to obey it
unless and until that judgment has been set aside."
That Order of 6th February 2015 issued by the trial Court
not having been attacked on appeal, cannot be properly
raised here as it creates the impression that an appeal can
validly lie from the High Court to the Supreme Court, by-
passing the Court of Appeal which is the appropriate forum
from which an appeal to the Supreme Court can validly be
brought. I rely on Sections 233, 241 and 242 of the
Constitution of Nigeria, 1999 (as amended).
As if that situation is not bad enough the appellant is crying
more than the bereaved in championing the case of 2nd
and 3rd
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respondents on their being served outside jurisdiction.
Appellant has no locus standi to so do. See the case of
Chime v Chime (2001) FWLR (pt. 39) pg. 1457 @ 1470
para D -G. this Court held in the lead judgment per Wali
JSC (as he then was) as follows:
"For a party to a suit to apply for the proceedings to
be nullified by reason of failure of service, where
service is a requirement, it must sufficiently be
established that he or she has not been served in
respect of the proceedings...
In the instant case it was not open to the applicants
to argue that the proceedings be nullified on the
ground that the 3rd defendant was not served with
the originating summons.
It is to be reiterated that the appellant sees a fault in the
service of the process of the trial Court, he did not raise
that objection at that Court of first instance and the order
of substituted service of the trial Court was not challenged
on appeal which is the basis for what the appellant is
advancing herein in argument. The Court below saw
through what was at play and stated thus:
"It was not his case that the mode of service
shortchanged his ability to respond to the processes
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served on him. The appellant in fact filed his response
to the processes. The complaint of the appellant on
the issue of substituted service is thus phantom and
esoteric and not real. It will not be countenanced by
this Court."
It seems to me that the appellant is making out a new case
different from what was in the trial Court and at the appeal
stage in the Court below with a transformation of a new
vista herein. The appellant would not be assisted by the
judicial authorities he has cited as they have to be applied
to related facts and not across the board no matter what is
seen available.
The issues are therefore resolved against the appellant.
ISSUE NO 4
Whether the lower Court was right to hold that the trial
Federal High Court was competent and did competently
assume jurisdiction in this suit.
Nureini Jimoh Esq., Learned counsel for the appellant
submitted that by virtue of Section 87 (1) and (9) of the
Electoral Act, 2010 (as amended), a political party seeking
to nominate candidates for elections under the Act shall
hold primaries for aspirants to all elective positions. As
aspirant who complains that any of the
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provisions of the Act and the guidelines of a political has
not been complied with in the selection or nomination of a
candidate of a political party for election may apply to the
Federal High Court or State High Court or that of the
Federal Capital Territory for redress. Such a complaint
must come within the narrow compass of that the National
Executive Committee of the political party conducted a
primary election which he was an aspirant and that the
primary election was conducted in breach of specified
provisions of the Electoral Act or the party’s election
guidelines, learned counsel stated.
He cited Emenike v PDP (2012) 12 NWLR (pt. 1315)
556; Lado v CPC (2012) SCNJ 383 etc.
It was also submitted for the appellant that on the facts and
circumstances of this particular case the Federal High
Court lacks jurisdiction to entertain the suit because the
real question was whether there was a primary election at
all. See Salim v CPC (2013) 6 NWLR (Pt. 1351) 501;
Ohakim v Agbaso (2010) 19 NWLR (Pt. 1226) 237;
Adetayo v Ademola (2010) 15 NWLR (pt. 1215) 169 at
190.
That the proper forum was the Kano State High Court
where the territorial party
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and subject matter jurisdiction of the matter will be
properly taken. He relied on Kakih v. PDP (2014) 5 NWLR
(Pt. 1430) 374 at 411-414 and 417 and 433 etc.
In response, Usman Umar Esq. for the 1st respondent
submitted that the trial Federal High Court had the
jurisdiction to entertain the matter before it. He cited
Elelu-Habeeb v A. G. Federation (2012) 13 NWLR (pt.
1318) 423: Gwede v INEC (2014) 18 NWLR (Pt. 1438)
56; Ahmed v. Ahmed (2013) ALL FWLR (Pt.699) 1025
etc.
For the 2nd respondent, R. A. O. Adegoke Esq., contended
that the reliefs sought at the Court of trial were within the
Federal High Court and so it was right for that Court to
assume jurisdiction and entertain the matter.
In upholding the jurisdiction of the trial Court to entertain
the suit of the 1st respondent, the Court below stated as
follows:
"Reading through the Originating Summons of the
first respondent, in the instant case, it is clear that
the gravamen of the question he submitted for the
determination of the lower Court was on inquiry into
the Propriety and validity of the action of the third
respondent, Independent Electoral National
Commission, in publicizing,
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recognizing and including the name of the appellant
and/or dealing with the appellant as the candidate of
the second respondent (APC) to contest election into
Kano State House of Assembly representing
Gabasawa Constituency of Kano State scheduled to
take place on the 28th day of February, 2015 when he
the first respondent was the winner of the primary
Election conducted by the second respondent. In
Gwede v Independent National Electoral Commission
(2014) 18 NWLR (Pt. 1438) 56, the Supreme Court
stated that the Publication of the list of candidates to
contest on election by the electoral body was
administrative action of an agency of the Federal
Government."
What I see as the case of the 1st respondent as plaintiff is
that there was a primary election conducted by the 1st
respondent which was monitored by the INEC and that he,
1st respondent scored the majority of the lawful votes cast
at the said primary but the 3rd respondent refused to
recognize and treat him as the winner and publish his
name. That is that there was not a full compliance with the
Electoral Act and the 1999 Constitution of Federal Republic
of Nigeria. In respect to the Electoral Act I
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shall make reference to Section 87(10) thereof.
Section 87 (10) provides
"Notwithstanding the provisions of the Act or Rules of
a political party an aspirant who complains that any
of the provisions of this Act and the guidelines of a
political party has not been complied with in the
selection or nomination of a candidate of a political
party for selection, may apply to the Federal High
Court or the High Court of a State for redress".
From what was available to the trial Court, it was evident
that the matter fell squarely within Section 87(9) of the
Electoral Act and the Trial High Court vested with the
jurisdiction and the Court below had no difficulty in stating.
Therefore the case of Kakih v. PDP (2014) 7 - 7 MJSC. It
cannot assist the appellant as in that case there was no
evidence to warrant the invocation of Section 87 (9) of the
Electoral Act as the facts were outside the ambit of
accommodated issues. A similar misfortune fell with
holding onto the cases of Ahmed v. Ahmed (2013) ALL
FWLR (Pt. 699) 1025 and Gbelere v. Adeniji (2014)
LPELR - 22141
In the final analysis the two Courts below were right in
holding that jurisdiction enured
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to the Court of trial.
ISSUE NO 5
Whether in the circumstances of this case, the suit
was rightly commenced by originating summons and
the lower Court rightly found on the affidavit before it
including issues of forgery.
Learned counsel for the appellant contended that the issues
thrown up including the allegation of forgery were such
that there was need for oral evidence to resolve the
conflicts arising in the affidavit evidence. Also that credible
evidence of forgery were needed such that affidavit
evidence was not enough. Therefore commencing the
action by originating summons was not the correct way to
go but the suit ought to have been initiated by a Writ of
Summons.
He cited Kowa v Musa (2006) 5 NWLR (Pt. 872) 1 at
34: Aregbesola & Ors. v Oyinlola (2010) LPELR 3805;
Ndoma Egba v ACB Plc (2005) 7 SC (Pt. 111) 27 etc.
Learned counsel for the 1st respondent submitted that
there had not been a successful challenge to the case of the
1st respondent to warrant the calling of oral evidence. That
there was nothing available in the affidavit evidence of the
defendants at the Court of trial that were not effectively
answered and the
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establishment of the case of 1st respondent made. He cited
Livestock Feeds v Funtua (2005) ALL FNLR (Pt.286)
753 at 771; Atoka v Nwuche (2013) 3 NWLR (Pt.
1341) 337.
The 2nd respondent was of the same mind as 1st
respondent and that is that the Court below was right in
finding for the 1st respondent and no need for oral
evidence and that the Suit commenced by originating
summons was in order.
The Court below had held in respect to the affidavit
evidence presented by the 2nd and 4th respondents as
follows:
“What is clear from the above is that the second and
fourth respondents presented two materially
contradictory pieces of evidence on the issue of
conduct of primary election for the Gabasawa
Constituency on the 2nd day of December, 2014
before the lower Court through their witnesses and
both pieces of evidence were given on Oath. It is
settled law that the consequence of a party
presenting such materially conflicting evidence is
that the case of the party is destroyed and cannot be
believed”.
In respect to the affidavit evidence of the appellant and the
annexure in support therein of the averment, the Court
below held thus;
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"With regards to the deposition of the appellant, his
allegation that the result sheet of the primary
election exhibited by the 3rd respondent was a
forgery because it did not emanate from the second
respondent and that the report of the primary
election of the 3rd respondent was forged on the
letter head of the 3rd respondent were documentary
hearsay evidence. The appellant never said he was an
officer or employee of either the second or third
respondent and he did not state in his affidavit the
name of the official or of the person in the
employment of the third respondent who told him
that the result was forged on their letter head this is
particularly more so as the second respondent
presented no credible evidence before the lower Court
to challenge the authenticity of the result sheet and
the third respondent, on its part, confirmed the
authenticity of its report on the primary election in
its counter affidavit".
From the materials available in this matter there is no basis
I can see for deviating from commencing the action by
Originating Summons as nothing propelled testimony which
would have changed the texture of the process and made
the need
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for initiation of the suit by writ of summons imperative. The
matter as presented by the plaintiff/1st respondent was
straight forward with affidavit evidence and possible
documents exhibited sufficient to establish on the balance
of probabilities. Pleadings were clearly uncalled for not to
talk of calling of oral evidence since all the Court needed to
know or utilise to reach a decision one way or the other
were such that affidavit evidence would easily satisfy.
Of note is the fact that the Court below found and rightly so
that the two pieces jointly filed by the 2nd and 4th
respondent contradicted themselves. That situation does
not qualify as conflict in affidavit for which there would be
justification in calling for oral evidence of the deponents to
resolve the conflict. Such oral evidence in resolution of
conflict comes into play where it is conflict against the
other party not parties on one side of the divide. See cases
of Arjoy Ltd v AMS Ltd (2003) 4 NWLR (Pt.863) 425:
Gbileve & Anor. v Addingi & Anor.(2014) 16 NWLR
(Pt. 1433) 394.
Indeed there is no faulting what the Court below did that
commencing this matter by originating summons
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was in order and there was enough from the affidavit
evidence from which the issues including that of forgery
could be determined.
The issue is resolved against the appellant.
All the issues well settled against the appellant it is clear
from the forgoing and the better reasoning in the lead
judgment that this appeal lacks merit and I also dismiss it.
I abide by the consequential orders made.
KUMAI BAYANG AKA'AHS, J.S.C.: I was privileged to
read in draft the judgment of my learned brother, Augie
JSC in which he dealt exhaustively with the issue arising in
the appeal. I agree entirely with the resolution of the issues
and the conclusion that the appeal is bereft of merit and
should be dismissed. I equally dismiss the appeal.
PAUL ADAMU GALINJE, J.S.C.: I have had the privilege
of reading in draft the judgment just delivered by my
Learned brother, Amina Adamu Augie JSC and I entirely
agree with the reasoning contained therein and the
conclusion arrived thereat. My Learned brother has
admirably resolved all the issues submitted for
determination of this appeal, so much so that whatever I
say will amount to a mere repetition. The
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Appellant's case is built around the substituted service on
him and the improper service on the 2nd and 3rd
Respondents, The substituted service was affected on the
order of the trial Court against which there is no appeal.
That order which was made on the 6th of February 2015
remains valid and was property enforced.
A judgment or order of Court remains in force and binding
on the parties until it is set aside. Service of Court
processes may be a jurisdictional issue which can be raised
at any stage of a case. However when a trial Court has
determined and made pronouncement on that issue, a party
who is aggrieved must follow the right course that is appeal
challenging the pronouncement must go through the Court
of Appeal before a subsequent appeal from the Court of
Appeal can be heard and determined in this Court.
See Rossek v. ACB Ltd (1993) 8 NWLR (Pt. 312) 382,
S.233 of the Constitution of the Federal Republic of
Nigeria 1999, Babatunde v. Olatunde (2000) 2 NWLR
(Pt.646) 568.
The Appellant cannot in Law be allowed to raise the issues
of service on the 2nd and 3rd Respondents who have not
shown that they are aggrieved with the service of
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processes on them, as he has no locus standi to do so. See
Chime v. Chime (2001) FWLR (Pt. 39)1457 at 1470
Paragraphs D – G.
Finally the trial Court, by virtue of S.87 (9) of the Electoral
Act. has jurisdiction to hear and determine cases bordering
on whether primary elections are conducted in accordance
with party guidelines, Electoral Act and the Constitution.
The complaint before the trial Court was about the conduct
of primary election by the 2nd Respondent for the
nomination and/or selection of a candidate representing
Gabasawa Constituency of Kano State House of Assembly
for the 2015 general election. Clearly, the Federal High
Court has jurisdiction and competence to entertain the case
See Gbeleve v. Addingi (2014) 16 NWLR (Pt. 1433)
394.
With these few orders and the more elaborate reasons in
the lead judgment, which I adopt as mine, this appeal shall
be and it is hereby dismissed. I endorse all the
consequential orders made in the lead judgment including
order as to costs.
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