Air Marshall Isaac M Alfa V. Senator Aidoko Attai & Ors (2017)
LAWGLOBAL HUB Lead Judgment Report
CHIMA CENTUS NWEZE, J.S.C.
My Lords, notwithstanding the effervescent, although divergent submissions of counsel in this appeal, for reasons that would be evident anon, the only issue this court is actually confronted with and is therefore called upon to resolve orbits within a very narrow sphere. Simply put, it is the narrow question whether having regard to the host of conflicting averments and irreconcilable entries in the documentary exhibits, the Originating Summons was the proper procedural method for agitating the appellant’s case at the trial Federal High Court (hereinafter, simply referred to the “trial court”).
The sequence of events that prompted the parties’ resort to litigation may be summed up thus. Pursuant to the relevant provisions of the Electoral Act and its Guidelines, the Peoples’ Democratic Party (PDP, for short), on December 7, 2014, conducted its primaries. The purpose of the exercise was to select its candidate for the Kogi East Senatorial District. The appellant herein and the respondent were among the aspirants who participated in the exercise. At
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the conclusion of the said primaries, the PDP, the second respondent in this appeal, forwarded the name of the first respondent to the Independent National Electoral Commission (hereinafter, simply, called INEC) as the winner of the exercise.
Dissatisfied with the turn of events, the appellant, pronto, addressed petitions to the Kogi State Senatorial Appeal Panel; the National Chairman and the National Executive Committee of the second respondent, respectively. The appellant’s discomfiture with the unfavourable responses which his said petitions elicited knew no bounds. Indeed, he was so irked by the further affirmation of the emergence of the first respondent as the candidate of the second respondent for the said Senatorial District, that he repaired to the Federal High Court, Abuja (hereafter, simply, referred to the trial Court’) for the agitation of his grievance against these unpleasant results.
Thereat, he commenced a suit against the respondents herein. In the said suit, initiated by way of Originating Summons, he contested the emergence of the first respondent as aforesaid. In support of the said Originating
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Summons, pages 441 – 444 of Volume 1 of the record, one Segun Fiki deposed to a seven-paragraph Affidavit, pages 446 – 453 of Volume I of the record. Exhibits A-K, the fifteen documents which the deponent annexed to his Affidavit, could be found at pages 454 -610 of the record.
The respondents not only, vigorously and stridently, opposed the initiating process, that is, the Originating Summons of December 19, 2014; but also its subsequent amended versions of February 19, 2015 and March 23, 2015. While the second respondent’s (second defendant at the trial Court) Counter Affidavit to the First Amended Originating Summons could be found at pages 632 -766 of the record; their Counter Affidavit to the Further Amended Originating Summons are contained at pages 1642 – 1767 of the record.
In addition, the third respondent (as third defendant) greeted the appellant’s suit (plaintiff at the trial Court) with a preliminary objection. The objection, which interrogated the trial Court’s jurisdiction, was predicated on such grounds as: want of jurisdiction or, alternatively, the impropriety of agitating the suit by the Originating Summons Procedure:
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whether the Writ of Summons was not the more appropriate mode of commencing the suit etc. Although several grounds were canvassed, only the fourth ground is germane to the narrow question in this appeal. It is the ground that contended that ex facie the suit was of a hostile and contentious nature and thus not suitable for determination by the Originating Summons Procedure.
Sequel to the copious submissions of counsel, the trial Court dismissed the said objection. In particular, it found in favour or the propriety of Originating Summons which was employed in commencing the suit. Expectedly, the trial Court’s Ruling triggered off the appeal at the Court of Appeal (hereinafter simply referred to as the lower Court).
The decision of the lower Court, which prompted this appeal to this appeal, was that the Originating Summons procedure was improper since the issues were so contentious that they could only be resolved by oral evidence of witnesses. The lower Court frowned at the trial Court’s endorsement of the depositions in the affidavit evidence of the appellant over those of the first and second respondents without hearing oral testimonies of
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the witnesses.
In its view, the suit did not involve the construction and interpretation of certain sections of the Electoral Act. Contrariwise, it was the question of who, as between the appellant and the first respondent won the primary elections of the second respondent as afore-cited. This appeal is the expression of the appellant’s displeasure with the reasoning of the lower Court.
Again, having regard to the sole issue concreted above, for the determination of this appeal, only the second issue is relevant here. It was couched in this woolly phraseology:
Whether the Court of Appeal was right when it held that the suit brought by the plaintiff pursuant to the provisions of Sections 87 (9) of the Electoral ACT, wherein the complaint was that the PDP did not follow its Guidelines when it sponsored the candidate that did not win the said primaries and where the parties filed conflicting affidavits could not have been properly commenced and adjudicated upon the Originating Summons Procedure
ARGUMENTS OF COUNSEL ON THE ISSUE
APPELLANT’S CONTENTION
At the hearing of this appeal on March 22, 2017, J. B.
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Daudu, SAN, who with Godwin Obla, SAN, and other counsel for the appellant, adopted the brief filed on February 15, 2012. He equally adopted the Replies to the first and second respondents respectively. He placed reliance on them in urging the Court to allow the appeal.
Learned senior counsel inveighed against the reasoning of the lower Court [pages 3240 -3241 and 1341 -1342 of the record]. He submitted that the Originating Summons, being one of the means of commencing civil proceedings in the High Court, is an appropriate and acceptable procedure, where the object is to obtain justice speedily and it is unlikely that there would be any substantial dispute of facts. He contended that Section 87 (9) and 10 of the Electoral Act, from which the right to institute the action was prescribed, did not specify any procedure for instituting the action.
He contended that the lower Court ought to have considered the fact that, being a pre-election matter, time was of the essence to a determination of any dispute arising from a complaint of a breach by one of the parties of the Party Guidelines. In his view therefore, the Originating Summons procedure
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was best suited for this kind of claim.
He submitted that the legislative intention flowing from Section 87 (9) and (10) (supra) is to enable the Court hearing, the Originating Summons to determine the questions in controversy and make binding declarations of right in respect of any relief or proved remedy. He claimed that there is no law or rule that makes it mandatory for the parties to call oral evidence to prove the liability of the defendant where the proceedings are instituted by way of Originating Summons, citing Fabunmi v Agbe (1985) 1 NWLR (Pt 2) 229; Bello v Eweka [1981] 1 SC 101.
He further opined that the intendment of the legislature by being silent on the mode of application under Section 87 (10) (supra), is to allow the litigant adopt or follow that procedure that will ensure speedy trial and minimise costs of litigation.
He took the view that the nature of the issues joined in the depositions and exhibits particularly Exhibit D attached to first defendant’s Counter Affidavit of February 13, 2015, vide Paragraph 6 (e) thereof – the official Result Sheet form, Code PD004/NA2014 with serial number 0000036, which the
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trial Court held was irrelevant – obviated the need for the resolution of what he termed “seeming conflict.”
Learned senior counsel then proceeded to justify the trial Court’s finding that the third defendant was estopped from relying on his own Exhibit SAA3. He drew attention to the trial Court’s finding that the said Exhibit SAA3 was unreliable having been disowned by Hon Seidu Odoma, the person who was named as a Returning Officer in it and was purportedly one of the signatories. He pointed out that the trial Court believed the depositions of Seidu Odoma, Capt Joe Agada and Hon Edino Daniel which were annexed to the Further Affidavit of the plaintiff disputing the authenticity of Exhibit SAA3 and its content as not having emanated from the primary election of December 7, 2014 in Kogi East Senatorial District.
According to him, the trial Court believed their depositions rather than those of the third defendant and Emenike Agbo as to what transpired on the said date, namely, December 7, 2014. He maintained that, from the foregoing, there was no need to call oral evidence or subject any of the deponents to rigorous cross examination to
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establish the truth of the respective claims of the parties, citing Exhibit D annexed to the affidavit of Emenike Agbo and Exhibit SAA3.
He called attention to the fact that the first respondent deposed to the fact that both Exhibits SAA3 and Exhibit D were the same in content. While on their part, both the trial Court and the lower Court were ad idem that Exhibit SAA3 and Exhibit D were different result sheets, the respondent deposed to the fact that his own Exhibit SAA3 was the same document as Exhibit D.
He pointed out that while Hon Seidu Odoma, the PDP Returning Officer disowned Exhibit SAA3; Capt Joe Agada, a fellow contestant, and Daniel Edino, the Assistant Returning Officer, impugned the said Exhibit SAA3. According to him, both the trial Court and the lower Court were right on this exhibit, citing F. B. N. Plc v May Med Clinics (2001) 9 NWLR (Pt. 717) 28, 38.
He re-iterated the long-established position that documents are utilisable as hangers for reconciling conflicts in affidavits, Nwosu v ISESA and Ors (1990) 4 SCNJ 97, 115; (1990) 2 NWLR (Pt 135) 688 and other decisions. He maintained that the lower Court was in
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error in its conclusion that only oral evidence could assist the Court in resolving the conflicts in the affidavit.
CONTENTION OF THE FIRST RESPONDENT
On his part, P. I. N. Ikwueto, SAN, senior counsel for the first respondent, who appeared with other counsel, adopted the first respondent’s brief filed on March 1, 2017. His submissions may be summed up as follows.
Although, in their host of documents [outlined in Paragraph 5.17, page 24 of the first respondents brief], the appellant conceded that the Returning Officer submitted the official PDP result sheet, Form code PD004/NA2014 to the PDP State Organising Secretary who allegedly submitted the said Form to Dr Charles Nwokeaku, the Secretary of the Electoral Panel, the said PDP State Organising Secretary, the alleged recipient of the result of the primary election, did not confirm the claims of the appellants and his witnesses. In his view, this omission was fatal to the claim of the appellant, being only hearsay evidence, citing Sections 37 and 38 of the Evidence Act.
He drew attention to the criminal allegations, Paragraphs 8 -10 of the affidavit of Daniel Edino,
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namely the allegation that the first respondent disrupted the conduct of the primaries, pages 1178 -1178, Vol 2 of the record, an offence under Section 128 of the Electoral Act, 2010 (as amended); Omojola v Oyateru (2009) All FWLR (Pt 453) 1318, 1333; Section 135 (1) of the Evidence Act, 2011.
Learned senior counsel contended that, since the suit had the effect of questioning the internal affairs of a political party, citing the appellant’s reliance on the Extract of the Report of the Electoral Committee which affirmed that: the primary elections in the three Senatorial Zones, namely, Kogi Central, Kogi East and Kogi West, were hitch free and successful, it was unsuitable for placement on the Originating Summons Cause List.
He drew attention to the finding of the lower Court at page 3240, Vol 4 of the record to the effect that “the PDP averred that it was the appellant (now the first respondent) who won the election and not the first respondent (now appellant]. It also disowned the result sheet exhibited and relied upon by the first respondent as not being the result of the primaries… if this in itself is not a conflict requiring the
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calling of evidence, then what exactly is”
Citing the first respondent’s documents attached to his Counter Affidavit, Paragraph 5.26, page 28 of the brief, he contended the trial Court ought to have ordered that the suit be determined as an ordinary Writ of summons necessitating the filing of pleadings whereupon, at the hearing, the depositions of the witnesses could be subjected to the crucible of cross examination. He cited and relied on a host of decided cases, Paragraphs 5.28 -5. 30, pages 29-30 of the brief; pages 31 -37 of the brief.
ARGUMENTS OF THE SECOND RESPONDENT
F. S. Jimba, for the second respondent, adopted and relied on the brief filed on March 17, 2017. Essentially, he aligned his submissions with those of the learned senior counsel for the first respondent, citing the appellant’s allegation of forgery against the respondents, forgery allegations which ought to have been proved according to the tenor of Section 135 (2) of the Evidence Act (supra). In his view, the respondents were entitled to cross examine Seidu Odoma in person since he disclaimed his signature on Exhibit B.
He drew attention to the
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existence of two persons bearing the same name. On the one hand, Seidu Odoma, the Returning Officer co-opted by the Electoral Committee in respect of the primary election, signed Exhibit SAA3/Exhibit D. On the other hand, by the appellant’s Exhibit F1, the other Saidu Odoma was appointed by the Kogi State Organising Secretary of the second respondent.
In addition, this same Seidu Odoma, by Paragraph 4 (m) of the Affidavit of Segun Fiki in support of the appellant’s Originating Summons, delivered the result which the appellant relied upon to the State Organising Secretary, who appointed him, instead of the Electoral Committee in charge of the said primary election. He maintained that only the cross examination of this Seidu Odoma would have demystified the conundrum regarding his identity.
He wondered how the trial Court, on the one hand, could have found that the second and third respondents were relying on “two contradictory pieces of documentary evidence; and on the other hand disclaiming the same document as “totally irrelevant,” Paragraphs 71 – 83, pages 20 21 of the brief.
APPELLANTS REPLIES TO THE
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RESPONDENTS
Expectedly, the appellant devoted considerable energy to his attempt to debunk the submissions of the first and second respondents, Paragraphs 23 et seq of the Reply brief to the first respondent, filed on March 7, 2017 and Paragraphs 11 et seq of the Reply brief to the second respondent.
RESOLUTION OF THE SOLE ISSUE
My Lords, as shown above, sequel to the copious submissions of counsel, the trial Court not only dismissed the Objector’s preliminary objection against the improper mode of the commencement of the appellant’s suit; it actually found in favour of the propriety of Originating Summons which was employed in commencing the suit.
On its part, the lower Court, in upturning the decision of the trial Court, upheld the contention that the Originating Summons procedure was improper since the issues were so contentious that they could only be resolved by oral evidence of witnesses. The lower Court frowned at the trial Court’s endorsement of the depositions in the affidavit evidence of the appellant over those of the first and second respondents without hearing oral testimonies of the witnesses.
For their
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bearing on the resolution of this issue, the views of Oho, JCA, who wrote the leading judgment of the lower Court would be set out in extenso. Hear His Lordship:
The main thrust of the arguments in respect of the Originating Summons procedure is that the facts upon which the main issues.. were predicated are disputed and highly contested; that the matter would have been better resolved not by the Originating Summons procedure but by filing of pleadings and the taking of oral evidence from the witnesses
It should perhaps be important to mention the fact here that in the depositions of the second respondent’s Counter Affidavit in Paragraphs 6 (a) (v) , the PDP averred that it was the appellant (the first respondent in the present appeal before this Apex Court) that won its primaries and not the first respondent (in the present appeal before this Apex Court, the appellant). It also disowned the result sheet exhibited and relied upon by the first respondent (in the present appeal before this Apex Court, the appellant) as not being the result of its primaries. The question that, therefore, begs to be answered here is; if
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this in itself is not a conflict requiring the calling of evidence, then what exactly is it
…. In the instant appeal, a careful examination of the records reveal the existence of an avalanche of filed processes and documentary exhibits consisting of the depositions of the appellant and the second respondent (PDP) whose documentary exhibits in their separate affidavits are constantly disputing the claims of the first respondent (appellant herein) to having won the primaries in dispute.
In the lower Court’s bid to interpret the provisions of the PDP Constitution and Guidelines, it ended ironically in reconciling tons and tons of affidavit evidence backed by hundreds of exhibits and in the process engaging in the abominable practice of picking and choosing which of the affidavit evidence of the parties to believe and which to disbelieve …it (was) only (by) resorting to viva voce evidence that the Court could have arrived at the justice of the case in this matter where the issues involved touched (on) the material substance of the matter, and that is who between the appellant and the first respondent won the election primaries in
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issue
having by his own showing, narrowed down the area of dispute between the parties to the contest of who between the appellant and first respondent won the PDP Kogi East Senatorial primary election…, prudence, on the part of the learned trial Judge, ought to have dictated that the suit was strictly not one about the construction or interpretation of Sections 85, 86 and 89 of the Electoral Act which are clear and unambiguous pieces of legislation. Pleadings ought to have been ordered and oral evidence led in the circumstances.
(pages 3236 -3243 of the record; italics supplied for emphasis)
As noted above, learned counsel for the appellant argued that Sections 87 (9) and (10) of the Electoral Act did not specify any procedure for instituting the action. With due respect, this is not only a disingenuous submission masked in sophistry, it is indeed a specious argument that is bound to rankle all procedural Jurisprudents.
As learned senior counsel must be aware; with the exception of some specific statutes, for example, the Marriage Act and Matrimonial Causes Act; the Companies and Allied Matters
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Act (CAMA, for short) and the Electoral Act, which stipulate modes of commencement of certain special proceedings; the Rules of Courts generally dictate the mode of the originating suits thereat.
Indeed, there are four broad modes of commencing civil suits namely, by (a) Writ of Summons; (b) Originating Summons; (c) Originating Motions and (d) Petitions. The first three methods are prescribed by the Rules of Courts, viz, the Rules of Court in relation to Writ Of Summons; Originating Summons and Originating Motions. The latter, Originating Motions, could be categorized into two broad types, (i) Originating Motions for Prerogative Orders and (ii) Originating Motions under the Fundamental Rights (Enforcement Procedure) Rules, 1999 (made pursuant to the authorities that inhere in the Chief Justice of Nigeria).
Lastly, Petitions as modes of originating actions are employed in commencing suits pursuant to express statutory provisions as shown above. Each of these is referred to as an Originating Process, G. F. Harwood, Odgers Principles of Pleadings and Practice in Civil Actions (Twentieth Ed) (New Delhi India; Universal Law Publishing
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Co. Pvt. Ltd, (2010) 352; F. Nwadiala, Civil Procedure in Nigeria (Lagos: University of Lagos Press, 2000) 211; Arjay Ltd and Ors v A. M. S. Ltd (2003) LPELR -555 (SC); Inakoju and Ors v. Adeleke and Ors (2007) LPELR-1510 (SC); Pam and Anor v. Mohammed and Anor (2008) LPELR -2895 (SC); National Bank of Nigeria Ltd and Anor v Alakija and Anor (1978) LPELR -1949 (SC); Ezeigwe v Nwawulu and Ors (2010) LPELR 1201 (SC); Famfa Oil Ltd v AG, Fed and Anor (2003) LPELR-1239 (SC).
The instant suit was commenced pursuant to Order 3 Rules (6) and (7) of the Federal High Court (Civil Procedure) Rules, 2009. They are in pari materia with the Rules of the various High Courts that deal with the commencement of suits under the Originating summons procedure: a procedure, amply and exhaustively dealt with in many case; NBN v Alakija (1978) 2 LRN 78, 86-87; Din v A-G, Federation (1986) 1 NWLR (Pt. 17) 471; Obasanya v Babafemi (2000) 15 NWLR (Pt. 689) 1; Nigerian Breweries Plc v. L.S.B.I.R. (2002) 5 NWLR (Pt. 759) 1; Alubankudi v. A-G, Federation (2002) 17 NWLR (Pt. 796) 338; Keyamo v. House of Assembly, Lagos State (2002) 18 NWLR (pt. 799) 605; Oloyo v Alegbe (1983) 2 SCNLR
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35; Famfa Oil Ltd v A-G Federation (2003) 51 WRN1, 9.
Now, the term “originating summons” made its debut in the lexicon of Adjectival or Procedural law with the promulgation of the Chancery Procedure Act, 1852. It however only emerged as a feature of the rules of Court in 1883 with the amendment of the 1875 Rules of the Supreme Court of England, NBN v Alakija (1978) 2 LRN 78, 86-87. In this regard, the judgment of Lindley LJ in Re Holloway (A Solicitor), ex parte Pallister [1894] 2 QB 163, 167 furnishes invaluable insights into its historical evolution, see per Nweze JCA (as he then was) in Biodun Olujimi v. Ekiti House of Assembly (2009) 33 WRN 44
A survey of the earliest English cases and the leading decisions of this Court would reveal the judicial attitude to the invocation of the originating summons procedure. In both jurisdictions, Courts disclaim the propriety of resolving matters “of a contentious nature” by originating summons, Re Sir Lindsay Parkinson & Co Ltd Settlement Trusts U965) 1 All ER 609; Re Powers, Lindsell V. Philips (1885) 30 Ch D 291; Re Giles, Real and Personal Advance Co. v Michell (1890) 43 Ch D 391; Re Doherty,
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Doherty (1967) 1 A. N. L. R. [reprint] 260, 265, [where Ademola CJN frowned at the Invocation of the originating summons procedure in “hostile proceedings”]; NBN V. Alakija (1978) 2 LRN 78, 86-87; Famfa Oil Ltd V. A-G Federation (2003) 51 WRN 1, 9.
In Inakoju V. Adeleke (2007) 1 CCLR 240, 311, this Court summed up its attitude to this question thus:
…commencement of action by originating summons is a procedure which is used where the facts are not in dispute or there is no likelihood of their being in dispute Originating summons is not (for) matters of such controversy that the justice of the case could demand the settling of pleadings
See, also, Adegbuyi v. APC (2014) 12 SC (pt.1) 1; Obasanya V. Babafemi (supra), Nigerian Breweries Plc V. L. S. B. I. R. (supra); Alubankudi V. A- G, Federation (supra); Keyamo V. House of Assembly, Lagos State (supra); Oloyo V. Alegbe (supra); Famfa Oil Ltd V. A-G Federation (supra).
Just like the other rules of Courts of other jurisdictions, the above Federal High Court Rules require the subsistence of substantial disputes of facts and not just disputed
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facts simpliciter, Habib (Nigeria) Bank Limited v Ochete (2001) 3 NWLR (pt. 699) 114, 135; Jimoh v. Olawoye (2003) 10 NWLR (pt. 828) 301, 346; Peters v Jackson (2001) 49 WRN 118, 136; Okumagba v Gov. Delta State (2005) 23 WRN 93, 124; B. J. Exp. & Chem Ltd v K. R. P.C Ltd [2003] 24 WRN 74, 94-95.
Speaking for the Court of Appeal, in Biodun Olujimi v Ekiti House of Assembly (supra), Nweze, JCA (as then was) explained that the word “substantial” which qualifies the word “dispute,” in rules similarly worded like the above Federal High Court Rules is the adjective of the noun “substance” (from the Latin word substantia), which derives from the Latin roots sub (under) and stare (to stand).
His Lordship further noted that its lexica meaning has been given variously as “not imaginary or illusory” (Websters Ninth Collegiate Dictionary page 1176); “having real existence not imaginary; relatively great in size, value or importance” (The Websters Dictionary of English Language International Edition, page 987); considerable in amount, extent, importance…” (Chambers 21st Century Dictionary, page 1407).
In Angbazo V.
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Ebye (1993) 1 NWLR (Pt. 268) 133, 143, the word “substantial” was defined to mean “having substance, being a substance, essential, actually existing, material, solid and ample, massy and stable.” In effect, then the expression “substantial dispute” in the above provisions of the Federal High Court Rules would mean inter alia a real, as opposed to an imaginary, dispute or controversy or a dispute or controversy of considerable importance. Inakoju V. Adeleke (supra); Re Sir Lindsay Parkinson & Co Ltd Settlement Trusts (supra); Re Powers, Lindsell V. Phillips (supra); Re Giles, Real and Personal Advance Co V. Michel (supra); Re Doherty V. Doherty (supra).
Against this background, therefore, I return an affirmative response to the rhetorical question of Oho, JCA, at the lower Court. As shown above, His Lordship noted thus:
It should perhaps be important to mention the fact here, that in the depositions of the second respondent’s Counter Affidavit in Paragraphs 6 (a) (v), the PDP averred that it was the appellant (the first respondent in the present appeal before this Apex Court) that won its primaries and not the first
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respondent (in the present appeal before this Apex Court, the appellant). It also disowned the result sheet exhibited and relied upon by the first respondent (in the present appeal before this Apex Court, the appellant) as not being the result of its primaries. The question that therefore begs to be answered here is; if this in itself is not a conflict requiring the calling of evidence, then what exactly is it
(Italics supplied for emphasis)
My Lords, I take the humble view that Oho, JCA was right that the state of the averments in the chiaroscuro of Affidavits and documents made it inevitable that the suit ought to have been transferred to the General Cause List of the trial Court where the matter would have been determined in the most common adversarial method of ventilation of their respective cases through issues, duly, joined in settled pleadings and oral evidence.
One more observation on the arguments of the learned senior counsel for the appellant. As shown above, he claimed that there was no law or rule that made it mandatory for the parties to call oral evidence to prove the liability of the defendant where the proceedings were
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instituted by way of Originating Summons, citing Fabunmi V. Agbe (1985) 1 NWLR (pt 2) 229; Belo V. Eweka (1981) 1 SC 101.
With profound respect, it is evident that the learned Senior Advocate of Nigeria for the appellant did not read any of the two decisions he cited with relish to persuade the Court to accept his position. Neither in the leading judgment of Obaseki, JSC (pages 5-46); nor in the contributions of Bello, JSC (as he then was), (pages 46 – 47); Uwais, JSC (as he then was), (page 47); Kazeem, JSC (pages 48- 50); and Oputa, JSC [50 -57], was the phrase “Originating Summons” discussed or even mentioned.
With regard to Bello v Eweka (supra), which learned senior counsel equally cited neither in the leading judgment of Eso, JSC (pages 2-28); nor in the contributions of Bello, JSC (as he then was) (page 28); Obaseki, JSC (pages 28 32); Aniagolu, JSC (page 32); and Nnamani, JSC (page 33) was the phrase Originating Summons mentioned or discussed.
Permit me therefore, my Lords, to re-state the position I had taken in another con. In Gbedu V. Itie (2010) 10 NWLR (pt.1202) 227, speaking for the Court of
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Appeal, Nweze, JCA (as he then was) observed, “with profound respect:
” to all learned counsel who are required by the operational rules in our appellate Courts to undertake the new art of ‘advocacy in writing…,’ [that]. it does not serve any useful purpose to suffuse a brief of argument with cases that would not assist the Court in the resolution of the main issues before it. This is so for it may not only be counter productive, it may actually obfuscate the Court’s perception of the issues. More importantly, that tendency merely underscores a penchant for grandstanding: an unwarranted relapse into pedantry! As much as possible, it should be discouraged! After all, the law is that: cases are decided on their facts and ratio decidendi is based on the facts of the case before the Court. A ratio cannot be determined outside the facts of the case,’ Onyia v. State (2009) A FWLR (pt. 450) 625, 640; (2006) 11 NWLR (Pt. 991) 267″
At page 26, Paragraph 49 of the appellants brief, it was also contended that there is no law or rule that makes it mandatory for the parties to call oral evidence to
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prove the liability of the defendant where the proceedings are instituted by way of Originating Summons. From the decisions already cited above, there can be no doubt that there is no substance in this submission.
Surely, any attempt “to prove the liability of the defendant” through the Originating Summons procedure, where the Affidavit (s) and Counter Affidavits evince the subsistence of substantial disputes, must be resisted. Inakoju V. Adeleke (supra); Re Sir Lindsay Parkinson & Co Ltd Settlement Trusts (supra); Re powers, Lindsell V. Philips (supra); Re Giles, Real and Personal Advance Co V. Michel (supra); Re Doherty V. Doherty (supra).
It cannot be otherwise for substantial disputes could only be resolved in the usual adversarial proceedings upon the settlement and exchange of pleadings: averments in pleadings borne out by oral evidence -oral evidence tested in cross examination, Cameroon Airlines V. Otutuizu (2011) LPELR – 827 (SC) 36; Insurance Brokers V. Atlantic ile [1996] 9- 10 SCNJ 171, 183, Housing Corporation V. Enekwe (1996) 1 SCNJ 98, 133; Odutola V. Papersack Nig Ltd (2006) 18 NWLR (pt 1012) 470; Alake
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and Anor v. Akun [2003] 14 NWLR (Pt. 840) 311; (2003) LPELR- 72 (SC) 9, Paragraph G; Ajuwon V. Akanni and Ors (1993) 9 NWLR (Pt. 316) 182, 200; Magnusson V. Koiki and Ors (1993) 9 NWLR (Pt. 317) 28.
More fundamentally, there is considerable force in the submission that the trial Court wrongly purported to determine the suit – a suit in which criminal allegations were hauled at the respondents – through the Originating Summons procedure. Nwobodo V. Oroh (1983) LPELR – 8049 (SC) 6-7, F-A; Emmanuel v Umana and Ors (2016) LPELR-40037 (SC) 17 – 18. Indubitably, that approach was a sacrilegious affront to a basic requirement that an accused person should confront his accuser. This is usually done through cross-examination or by the confrontation or contradiction of all the witnesses that testify against him; Nwanegbo V. Oluwole (2001) 37 WRN 101; Dawodu V. N. P. C. (2000) 6 WRN 116; Durwode V. The State (2001) 7 WRN 50.
That is why the Courts have taken the view that the art of cross-examination is the greatest weapon for devastating an adversary. It is therefore the pivot, the hub on which the trial gravitates. Onwuka V. Owolewa (2001) 28 WRN 89,
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This is so for it “constitutes a lethal legal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party…” Oforlette V. The State (2002) 12 NWLR (Pt. 681) 415, 436.
One final word: there was the submission that, since the suit involved the construction and interpretation of certain sections of the Electoral Act, the Originating Summons procedure was very appropriate. The simple answer to this submission could be found in the finding of the lower Court. According to Oho, JCA:
having by his own showing, narrowed down the area of dispute between the parties to the contest of who between the appellant and first respondent, won the PDP Kogi East Senatorial primary election…, prudence, on the part of the learned trial Judge, ought to have dictated that the suit was strictly not one about the construction or interpretation of Sections 85, 86 and 89 of the Electoral Act which are clear and unambiguous pieces of legislation. Pleadings ought to have been ordered and oral evidence led in the circumstances.
(pages 3236 -3243 of the record; italics supplied for emphasis)
I,
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entirely endorse this conclusion. In all, I find no substance in the entirety of the appellant’s submissions on this narrow question this Court is confronted with here. As noted, at the outset of this judgment, notwithstanding the effervescent, although divergent submissions of counsel in this appeal, the only issue this Court is actually confronted with and is therefore called upon to resolve orbits within a very narrow sphere.
Simply put, it is the narrow question whether having regard to the host of conflicting averments and irreconcilable entries in the documentary exhibits, the Originating Summons was the proper procedural method for agitating the appellant’s case at the trial Court.
This my Lords explains why throughout this judgment, I have endeavoured as much as possible to avoid the temptation of broaching any question or issue that might directly or indirectly prejudice the ultimate outcome of the suit: the outcome that would only be known upon the retrial of the case before another Judge of the Federal High Court.
Accordingly, I hereby enter an order dismissing this appeal. Additionally, I order that the
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matter be remitted to the Chief Judge of the Federal High Court who shall as a matter of urgency, re-assign it to another Judge of that Court. Upon re-assignment, the new Judge shall, pronto, order pleadings for the joinder of issues and thereafter hear and determine the matter expeditiously. Appeal dismissed.
SC.1088/2016
