Dr. Okezie Victor Ikpeazu V. Obasi Uba Ekeagbara & Ors (2016)

LawGlobal-Hub Lead Judgment Report

IBRAHIM SHATTA BDLIYA, J.C.A. 

This is an appeal against the judgment of the Federal High Court Abuja, (the lower Court) in Suit No. FHC/ABJ/CS/1086/2014, delivered on the 27th of June, 2016, by OKON ABANG, J. The 1st and 2nd respondents (who were the Plaintiffs) at the lower Court instituted the suit against the appellant (who was the defendant) by an originating summons filed on the 22nd of December 2014 which was amended on originating summons filed on the 22nd of December 2014 which was amended on the 12th of February, 2015. The appellant and the 1st and 2nd respondents are members of the 3rd respondent. The 3rd respondent conducted its primary election on the 8th of December 2014 as provided by Section 87(4) B(i)(ii) of the Electoral Act 2010 (amended) and the 3rd respondent’s Constitution. At the conclusion of the primary election, the 3rd respondent was declared as the elected candidate, while Dr. Sampson Uchechukwu Ogah came 2nd. The appellant then completed and signed INEC FORM CF.001 containing facts, information and documents which were submitted to the 4th respondent by the 3rd respondent as its candidate for the Governorship election which was conducted on the 11th of April, 2015 for Abia State. The 1st and 2nd respondents were dissatisfied with the election of the appellant (3rd respondent), hence they instituted the suit at the lower Court on the 22nd of December, 2014 by an originating summons, which was later amended. After the hearing of the suit, the learned trial Judge delivered his judgment on the 27th of June, 2016, granting the reliefs sought by the 1st and 2nd respondents. Peeved and piqued by the decision of the lower Court, the appellant filed three (3) different Notices of appeal, which can be found on pages 1116-1120; 1121-1126 and 1127-1130 respectively, all contained in vol. I of the record of appeal. However, the appeal has been argued on the Notice of appeal dated 20th and filed on the 21st of July, 2016.

The appellant’s brief of argument was dated and filed on the 22nd of July 2016, wherein six (6) issues have been distilled from the Notice and grounds of appeal, on page 4 thereof. The six (6) issues are thus:

(i) Considering the far-reaching definitive findings made by the lower Court on the merits of the case before it whilst considering preliminary objections, whether the judgment of the lower Court is not liable to be set aside as perverse. – Ground 1.
(ii) Considering the questions for determination in the amended originating summons, the reliefs claimed thereat, and the exhibits presented as evidence, whether the lower Court acted without jurisdiction to predicate its judgment on Articles 14 and 14(a) of the PDP Guidelines for primary election 2014 and the primary elections of the PDP. – Grounds 2, 3, 4, 6, 7, 13 and 18.
(iii) Considering the claim in the amended originating summons premised on submission of documents to INEC on 26th December, 2014, whether the claim at the lower Court was/is not premature and incompetent. Ground 27.
(iv) Considering the criminal nature of the findings made by the lower Court and the hostile nature of the plaintiffs’ case, whether the said Court was not wrong to have heard and determined the case before it using the originating summons procedure. – Grounds 26 and 28.
(v) Whether the lower Court was not wrong to have decided to adopt its findings in SUIT NO. FHC/ABJ/CS/71/16 – Dr. Sampson Uchechukwu Ogah v. PDP & Ors. to this suit.
(vi) Considering the totality of the evidence placed before the lower Court vis-à-vis the applicable laws and the 1999 Constitution of the Federal Republic of Nigeria (as amended) whether the lower Court was not wrong in granting the claims of the plaintiffs before it and exercising jurisdiction in the way and manner it so did. – Grounds 8, 9, 10, 11, 12, 14, 15, 16, 17, 19, 20 21, 22, 23, 24, 25, 29 and 30.

The 1st and 2nd respondents filed their brief of argument on the 2nd of August, 2016, wherein on page 3, six (6) issues which are not dissimilar to those contained in the appellant’s brief of argument have been culled from the Notice and grounds of appeal. The 3rd and 4th respondents did not file brief of argument. A reply trial was filed on the 4th of August, 2016.

At the hearing of the appeal on the 9th of August 2016, the Court drew the attention of learned counsel to the parties to pages 3 to 5 and 563-565 of vol.1 of the record of appeal where the originating summons and the Amended Originating Summons could be found, and invited them to address it as to whether the two (2) processes initiating the suit had been signed by the parties or their counsel as required by law. The Court considered it necessary to draw the attention of learned counsel and invited them to address it because the issue raised has not been raised and dealt with by the lower Court nor did the parties raise it in their briefs of argument. The issue has been raised suo motu, by the Court, because it is jurisdictional, that is, it involves the competency of the suit filed at the lower Court, and its jurisdiction to have entertained and or adjudicated same if it is established that the initiating processes have not been signed by the parties nor by their counsel as required by law.

I am not unmindful that a Court of law, either of first instance or appellate, should be reluctant to raise an issue(s) suo motu. For as pointed out in Shirting Civil Engr. v. Yahaya (2005) 5 SCM P. 101 @ 192, that:

“In our adversary system of adjudication, Courts should be reluctant or loath to raise issues suo motu. This is because the litigation is not theirs but that of the parties. If a Court raises an issue suo motu, it has removed itself from its exalted position to flirt with the parties and in the course gets itself soiled in the litigation€¦ Though a Court has the jurisdiction to raise an issue suo motu; it has not the jurisdiction to resolve the issue suo motu. The Court must give an opportunity to the parties to reach to the issue by way of address. On no account should a Court of Law raise an issue suo motu and resolve it suo motu”.

TOBI, J.S.C. (of blessed memory) had this to say in Okonkwo v. Cooperative & Commerce Bank (2001) 13 NSCCER P. 688 @ 735.

“While a Court has the jurisdiction to raise a matter suo motu, it has no jurisdiction to resolve it suo motu. In our adversary system of adjudication, a Court of law should be most reluctant to raise suo motu. When it does not, the parties must be given an opportunity to react to the issue before a decision is taken. The Court of Appeal did not follow this procedure. The Court was in serious error for not giving the right to counsel to react to the issue of waiver which it raised suo motu”.

Onnoghen, J.S.C, in the case of Shasi v. Smith (2009) 18 NWLR (Pt. 1173) P. 330 @ 346 said:
”It is settled law that though a Court of law may raise an issue suo motu. It cannot base its determination of the appeal or case on the issue so raised except it calls on the parties or their counsel to address it on that parties or their counsel to address it on that issue. In other words a Court of law has the vires to raise issue necessary for the determination of the matter before it subject to its being addressed on that point/issue by counsel for both parties if the decision of the Court is to be rooted or grounded on the issue so raised suo motu”.

This Court, per Ariwoola, JCA (as he then was) adumbrated in the case of Igbeke v. Emordi (2010) 11 NWLR (Pt. 1204) P. 1 @ 33, that:
“Though it is ordinarily not offensive for the Court or tribunal to raise an appropriate issue suo motu but it is already settled law, that where a Court raises an issue suo motu, it must afford the parties or their counsel the opportunity to address the Court on such an issue so raised. This is to ensure compliance with the rules of fair hearing for the purpose of doing justice to both parties”.

It was in view of the foregoing judicial pronouncements of the Apex Court and this Court on raising an issue suo motu by the Courts in the adjudication processes that this Court drew the attention of learned counsel to the parties, and invited them to address the Court on the issue raised by it.

The importance of jurisdiction cannot be underrated for purpose of litigation. Iragbiji v. Oyewinle (2013) 13 NWLR (Pt. 1372) P. 566; Opara v. Amadi (2013) 12 NWLR (Pt. 1369) P. 512. The issue of jurisdiction can be raised at any stage of the proceedings even at the appellate stage. Since jurisdiction is regarded as a threshold issue and a lifeline for conducting any proceedings, same ought to be taken and determined at the earliest opportunity. This is because any step taken in the proceedings where there is no jurisdiction, the entire proceedings are a nullity no matter how brilliantly handled or concluded. Western Union Works Ltd. v. Iron & Steel Workers Union (No. 1) (1986) 3 NWLR (Pt. 30) P. 617; Ndaeyo v. Ogunnaya (1977); I.B.W.A. v. Imano (Nig) Ltd. (1988) 3 NWLR (Pt. 85) P. 633; Dweye v. Iyomahan (1983) 2 SCNLR 135.

The issue for determination, on the point raised by the Court is this:
“Whether the learned Judge of the lower Court was right in assuming jurisdiction and adjudicated on the Suit No. FHC/ABJ/CS/1086/2014 when the originating summons which was later amended were not signed in any manner known to law.”

In the resolution of issues contained in the briefs of argument, an appellate Court is not under a regimental duty to accept the issues formulated by the parties. An appellate Court can and is entitled to reformulate issue or issues formulated by a party or parties or counsel in order to give it precision and clarity if it appears that the issues they formulated are awkward or not well framed. As a matter of procedure, an appellate Court can formulate issues for determination and as long as the issues cover the grounds of appeal. The purpose of reframing issue or issues is to lead to a more judicious and proper determination of an appeal. In other words, the purpose is to narrow the issue or issues in controversy in the interest of accuracy, clarity and brevity. As long as the issue or issues reframed, is/are anchored on the ground or grounds of appeal, the opposite party cannot complain. Okoro v. State (1988) 5 NWLR (Pt. 94) P. 255; Latunde v. Lajinfin (1989) 3 NWLR (Pt. 108) P. 177; Awojugbagbe Light Industries Ltd. v. Chinukwe (1995) 5 NWLR (Pt. 390) P. 379.

Furthermore, in the interest of justice, and for a just determination of an appeal, an appellate Court possesses the power to reject, modify or reframe any or all the issues formulated by the parties so long as the issue(s) so reframed or modified are predicated on the grounds of appeal. The Court is not under duty to prefer the issues in the appellant’s brief of argument or that of the respondent in the determination of an appeal. See AIB Ltd v. IDS Ltd (2012) 17 NWLR (Pt. 1328) P. 1 @ 31 and Sha (Jnr) v. Kwan (2008) 8 NWLR (Pt. 670) P. 685. That a Court can also frame or formulate issues for determination in a suit or appeal has support in the case of Peterside v. Fabara (2013) 6 (Pt. 1349) P. 156 @ 172, where it was held that an issue for determination may be framed by the appellant or respondent or by the Court itself which issue must be in conformity with the grounds of appeal. It must not be the issues as formulated by the appellant that the appellate Court must rely on for its consideration and determination of the appeal before it. Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) P. 373; Momodu v. Momoh (1991) 1 NWLR (Pt. 169) P. 608; Unity Bank of Nigeria v. Bouari (2008) 7 NWLR (Pt. 1086) 372; Awojugbagbe Light Industries Ltd. v. Chinukwe (1995) 4 NWLR (Pt. 390) P. 379; Latunde v. Lajinfin (1989) 3 NWLR (Pt. 108) P. 177.

The six (6) issues contained in the appellant’s and those contained in the 1st and 2nd respondents’ briefs of argument are interwoven, intertwined and dovetailing such that one set of issues cannot be resolved without delving into the other set of issues. For this reason the issues contained in the two (2) briefs of argument and that formulated by the Court are hereunder compressed and restructured thus:

ISSUES FOR RESOLUTION
(1) Whether the learned trial Judge of the lower Court was right in assuming jurisdiction and adjudicated on Suit No. FHC/ABJ/CS/1086/2014 when the Amended Originating Summons initiating same was not signed in the manner provided by law?
(2) Whether in view of the facts and circumstances of the case as it concerns the 1st and 2nd respondents’ claim in the amended originating summons no cause of action has been disclosed therefore the suit is premature and incompetent (encompassing ground 27 of the notice of appeal).
(3) Whether having regards to the fact and circumstances of this case, the trial Court was right in its finding that the action can be determined under the originating summons procedure. (Encompassing grounds 26 and 28 of the notice of appeal).
(4) Whether in view of the facts and circumstances surrounding the ruling of the trial Court in respect of the Appellant’s preliminary objection, the trial Court can be said to have delved into the merit of the case at the interlocutory stage. (Encompassing ground 1 of the notice appeal).

The issues enumerated supra, would be taken and resolved in the following order 1, 2, 3 and 4.

ISSUE 1
Whether the learned trial Judge of lower Court was not wrong when he assumed jurisdiction to adjudicate on the Suit No. FHC/ABJ/CS/1086/2014 when the initiating originating summons were not signed as required by law? On this issue Dr. Izinyon, SAN, of learned Senior counsel referred to pages 1 to 5 of the record of appeal vol.1, and submitted that the names of counsel who took out the originating summons have been listed at the top left hand margin of page 5 showing the signature of counsel. That the originating summons was amended which can be found on pages 563-565 of Vol.1 of the record of proceedings where the list of counsel who signed the writ have been provided. That if the amended originating summons has been signed, it cannot be doubted it has cured any defect in the original originating summons initiating the suit. Learned senior counsel did urge that the Court should hold that the originating summons having been amended, the suit filed by the 1st and 2nd respondents is competent and the lower Court had the jurisdiction when it entertained and adjudicated on same.

For the appellant, Chief Olanipekun, SAN, of learned Senior counsel, referred to page 5 of the record of appeal Vol. 1, and contended that there is no signature of any counsel on the originating summons, therefore, it has not been signed as is required by law. That even the amended Originating Summons on pages 563 to 565 cannot be valid because the counsel who signed it cannot be ascertained. That an invalid process cannot cure an invalid process. The case of Bawa v. State (1991) 2 NWLR (Pt. 178) P. 461 @ 475 and Dada v. Dosunmu (2006) 18 NWLR (Pt. 1010) P. 136 cited to buttress the submission that an incompetent process cannot be amended. That the signature on page 5 is different from that on page 565 of the record of appeal Vol.1, therefore, neither the original Originating Summons nor the Amended originating Summons has been signed by a Legal Practitioner as required by law.

Order 3 rules 12(2) and (3) of the Federal High Court Rules, 2009, provides as follows:
“12(2) A plaintiff or the plaintiff’s legal practitioner shall on presenting any originating process for sealing, leave with the Registrar as many copies of ‘the process as there are defendants to be served and one copy for endorsement of service on each defendant.
“(3) Each copy shall be signed by the legal practitioner or by a plaintiff where the plaintiff sues in person and shall be certified after verification by the Registrar as being a true copy of the original process”.
Section 2(1) of the Legal Practitioners Act provides thus:

“2(1) subject to the provisions of this Act; a person shall be entitled to practice as a Barrister and Solicitor if, and only if, his name is on the roll”.

Section 24 of the Legal Practitioner’s Act further provides that:
”24 in this Act; unless the con otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say-
‘Legal Practitioner’ means a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings”.

A Court process, whether Writ of Summons or Notice of appeal, or Statement of Claim or Statement of Defence must be signed by a named and identifiable Legal Practitioner. Any Court process not signed by a named and identifiable Legal Practitioner is incompetent, null and void. As to how a Court process is to be signed, the Supreme Court, per RHODES-VIVOUR, J.S.C, has had spelt out how it is to be signed in the case of SLB Consortium Ltd v. NNPC (2011) 9 NWLR (Pt. 1252) P. 317 @ 27, thus:
“Once it cannot be said who signed a process it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule of Court cannot override the law (i.e. the Legal Practitioners Act). All the processes filed in Court are to be signed as follows:
First, the signature of counsel, which may be any contraption.
Secondly, the name of counsel clearly written.
Thirdly, name and address of legal firm. In this suit, the originating summons was signed but there was no name of counsel. The position is that there must be strict compliance with the Law. In this case, there is signature of counsel but no name of counsel. A signature without name is incurably bad”.
In Mekiye & Anor. v. Tajudeen & Ors. (2012) 15 NWLR (Pt. 1323) P. 315 @ 338, this Court enunciated that:
“Any person signing process on behalf of a Principal partner in Chambers must state his name and designation to show that he is a legal practitioner whose name is ascertainable in the roll of legal practitioners. In the instant case, the identity of the signatory was not disclosed on the face of the process, rather, it was sought to be explained in an affidavit of status after an objection to the process was raised”.

Furthermore, in Adeneye v. Yaro (2013) 3 NWLR (Pt. 1340) P. 625 @ 63, Ogunbiyi, JCA (as she then was) said:

”It is significant to emphasize the clear intention of Section 2(1) of the Legal Practitioners Act, 1990 wherein the expected signatory must be a person qualified to practice ”as a Barrister and Solicitor if and only if, his name is on the”. The said section should be read along with section 24 of the same Act which defines the nature of the personality anticipated by section 2(1). An unknown person cannot qualify under the said provision, more so where a mere signature cannot give any information for purpose of specific identity. In other words, the stating clearly of the name of the counsel who signed the proposed notice of appeal is crucial with the document being an originating process. The scribed as it is in the case at hand, is not sufficient”. (Underlining mine)

At this juncture, I think, it is pertinent to have recourse to the printed record of appeal to scrutinize the originating processes in respect of Suit No. FHC/ABJ/CS/1086/2014 which was instituted before the lower Court: An originating summons was taken out on behalf of the 1st and 2nd respondents (who were the plaintiffs) by counsel, Max Ozoaka Esq. & Ors). It is on pages 3 to 5 of Vol. 1 of the printed record of appeal. The Originating Summons on pages 3-5 of the record of appeal Vol. 1 was amended and filed on the 12th of February 2015.

On page 5 of the record of appeal Vol.1, at the left side, there is an indication that some counsel purportedly signed the Originating Summons. The name of “Max Ozoaka Esq; Osimu Jones Esq., and Prosper Ukachukwu, Esq., of Excellex Solicitors & Barristers have been stated as the persons who took out the originating summons. The question is who among the three persons signed the originating writ of summons. Is it the 1st person named Max Ozoaka, Esq., or the 2nd person Osim U. Jones Esq., or the 3rd person, Prosper Ukachukwu, Esq. or all of them? By the decision in SLB Consortium Ltd v. NNPC (2011) 9 NWLR (Pt. 1252) P. 137 @ 727, the counsel who sign a Court process must be identified or identifiable, ascertained or ascertainable. Once it cannot be said who signed the process, it is incurably bad.

The originating summons was amended on the 12th of February, 2015. It is on pages 563 to 565 of Vol. I of the record of appeal. Beneath the signature the names of Max Ozoaka, Esq. with Osim U. Jones, Esq. Prosper Ukachukwu, Esq., and Judith Obiora-flo (Mrs.) Esq., have been listed as counsel taking out the writ of summons. Again who among them signed the Amended originating writ of summons. Can it be said that a specific particular counsel signed it? The manner of signing a Court process has been clearly spelt out by the Supreme Court in the case of SLB Consortium Ltd v. NNPC supra. That it must be signed by a known or identified or ascertainable counsel. In respect of the Amended originating summons which €¢ purportedly amended the originating summons on page 5 of the record of Appeal Vol. I, it cannot be ascertained who of the three (3) counsel signed it. That an originating Court process such as Notice of Appeal, writ of summons, originating summons or statement of claim, among others; must be signed by an identified or known legal practitioner has been enunciated in the case of PMB Ltd v. NDIC (2011) 12 NWLR (Pt. 1261) P. 253 @ 262 where Mshelia, J.C.A had this to say:
“A notice of appeal is an originating process which activates the jurisdiction of this Court. Since appellant’s counsel decided to sign the notice of appeal on behalf of the appellant, he owes a duty to his client to do so properly. With the position taken by the Supreme Court in Okafor v. Nweke (supra) that processes must be signed by a legal practitioner known to law, the identity of the person who signed the notice of appeal on behalf of appellant’s counsel is not irrelevant as contended by respondent’s counsel. The relevance of the disclosure of the identity is to assist the Court to confirm that the person who signed the document is a Legal Practitioner. It is my firm view therefore that the non-disclosure of the identity of the person who physically signed the notice of appeal on behalf of appellant’s counsel is not a mere irregularity as contented by respondent’s counsel but a fundamental error. The notice if appeal under consideration is in the circumstance, fundamentally defective and is liable to be struck-out. Failure to properly initiate an appeal is beyond mere technicality. Since there is no valid notice of appeal to activate the jurisdiction of this Court to determine the appeal on merit, same would be struck out for being incompetent.”
In Adeneye v. Yaro (2013) 3 NWLR (Pt. 1342) P. 685 @ 633, Jauro J.C.A cited and relied on the then unreported case of Onward Enterprises Ltd v. Olam International Ltd & Ors. Appeal No. CA/L/365/2008, where Mukhtar J.C.A, expressed the view on page 9 of the ruling that:
”Name of signatory is therefore necessary to fulfill the requirement of valid and legally recognizable signature. Even common sense dictates that signature is only identifiable by the name of the signatory. A Court initiating process like notice of appeal must therefore be signed by appending the name of the signatory in the absence of which it will be impossible to ascertain who the signatory is much less being a legal practitioner whose name could be traceable to the roll of legal practitioners in Nigeria.
By the definition of signature in the Black’s Law Dictionary as noted above, the mere typing of name on a process does not satisfy the requirement of signature. The person signing is required to write his name in longhand and in a legible and readable manner in order to satisfy the requirement of signature, which mere scribbling falls short of. I am not saying the signature must be readable, but the name of the signatory must be clearly stated on the notice of appeal which must be that of a legal practitioner. I am therefore unable to agree with the learned senior counsel for the appellant’s submission that the signature of an unnamed signatory satisfied the requirement of signature by a legal practitioner. Any attempt to detect the unnamed signatory will tantamount to converting the Court into a forensic laboratory.”

The name of who among the 3 counsel who signed the originating summons on page 5 and page 565 of the record of appeal Vol. I, cannot be ascertained. It is not the duty of the Court to do so. The name of the counsel who signed the originating summons, the Amended originating summons must be certain, and not in doubt as to who signed it.

An incompetent process is null and void ab initio. It cannot be amended. To reinforce the position of the law adumbrated supra, the case of Ministry of Works & Transport, Adamawa State v. Yakubu (2013) 6 NWLR (Pt. 1351) P. 481 @ 496 is cited and relied on. Muhammed, J.S.C. said:

“My lords, I would have ended this judgment here, but for the submission of the respondent counsel that the said originating process was amended and as such it does not form basis upon which the case was tried and determined. The questions that easily come to mind are that can an incompetent originating process or processes be amended, or can the incompetence of the process be cure by the amendment? No doubt, the learned counsel of the respondents pretends not to appreciate the fundamental nature of an originating process? The fatal effect of the signing of an originating process by a law firm is that the entire suit was incompetent ab initio. It was dead at the point of filing. This highlights the painful realities that confronts a litigants when counsel falls to sign processes as stipulated by law. The originating process, as in this case, is fundamentally defective and incompetent. It is inchoate, legally non-existent and can therefore not be cured by way of an amendment. See: N.N.B. Plc v. Denclag Ltd. (2005) 4 NWLR (Pt. 916) 549.”

Where an originating process initiating a suit has been found to be incompetent, a Court of law would not have the jurisdiction to adjudicate on it; for an invalid originating process cannot initiate a suit in a Court of law. In Kida v. Ogunmola (2006) ALL FWLR (Pt. 327) P. 402 @ 412 Mohammed J.S.C. enunciated that:
“The validity of the originating processes in a proceeding before a Court is fundamental, as the competence of the proceedings is a condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity.”

A Court of law can only be competent and having jurisdiction to adjudicate a matter before it where the following conditions have been fulfilled or satisfied.
(a) The Court is properly constituted as regards number and qualification of the members of the bench;
(b) The subject matter of the action is within the jurisdiction of the Court; and
(c) The case before the Court is initiated by due process of law, or that the condition precedent to the exercise of jurisdiction is complied with. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341.
Suit No. FHC/ABJ/CS/1086/2014 has not been initiated or commenced by a competent originating process as required by law, for the Amended originating summons which purportedly amended the originating writ of summons were not signed by a known and ascertainable counsel as enunciated in the cases of SLB Consortium Ltd v. NNPC (2011) 9 NWLR (Pt. 1252) P. 317 @ 327; Mekiye & Anor v. Tajudeen & Ors (2012) 15 NWLR (Pt. 1323) P. 315 @ 338 and Adenye v. Yaro (2013) 3 NWLR (Pt. 1340) P. 625 @ 630. Based on the principles of law enunciated supra, the lower Court had no jurisdiction in adjudicating Suit No. FHC/ABJ/CS/1086/2014 for it was not initiated or commenced by a valid and competent originating summons. The judgment of the lower Court in the said Suit No. FHC/ABJ/CS/1086/2014, delivered on the 27th of June 2016, has been delivered without jurisdiction. Same is liable to be set aside. I so make the order. I resolve issue 1 in favour of the appellant.

ISSUE 2
Whether a cause of action had accrued on the 22nd of December, 2014 when the 1st and 2nd respondents instituted Suit No. FHC/ABJ/CS/1086/2014 against the appellant, 3rd and 4th respondents? The appellant’s brief of argument was settled by Chief Wole Olanipekun, SAN. The gist of his submission is that jurisdiction of a Court of law is based on cause of action disclosed in the initiating process of a suit. That Suit No. FHC/CS/1086/14 was filed on 22/12/14; as at this date no document was submitted to INEC. It was on 26/12/16 that INEC FORM CF 001 was submitted to the INEC. That the Amended Originating Summons was based on the submission of INEC FORM CF.001 on the 26/12/14. As at that time no cause of action had accrued. That cause of action is determined by the originating process. The case of Orji v. Ugochukwu (2009) 14 NWLR (Pt. 1161) P. 207 @ 284 cited to buttress the submission supra. Senior counsel submitted that no extraneous matter can be considered in the determination of when a cause of action arose or accrued. The case of Thomas v. Olafusoye (1986) 1 NWRL (Pt. 18) P. 669 @ 682 cited in aid.

Senior counsel further contended that an examination of the originating summons and the affidavit in support of same would reveal that the claims of the 1st and 2nd respondents were based on the submission of FORM INEC CF. 001 to INEC, not to the Peoples Democratic Party (PDP), therefore the cause of action accrued on 26/12/14, not on 22/12/14 or on the 8th of December, 2014, the date the Primary Election of the Peoples Democratic Party (PDP) was conducted. Senior counsel also referred to the two (2) questions posed for the determination of the lower Court, and the reliefs sought which all referred to the submission of FORM CF.001 to INEC, not to the Peoples Democratic Party (PDP) but to INEC therefore as at 22/12/14 no cause of action had accrued to enables the suit be initiated by the 1st and 2nd respondents. That the action/suit filed on the 22/12/14 had no cause of action at that time, but it accrued on the 26/12/14 with the submission of FORM CF.001 to INEC on that date. That the suit filed on 22/12/14 by the 1st and 2nd respondents cannot be valid in law having been initiated or commenced when there was no cause of action.

Dr. Alex Izinyon, SAN, of learned Senior counsel to the 1st and 2nd respondents settled their brief of arguments. Senior counsel contended that the cause of action started to accrue on 8/12/14 when the People’s Democratic Party (PDP) held the Primary Election whereat the appellant submitted his documents as an aspirant to be elected as candidate of the party for the gubernatorial election of Abia State. That the appellant, having been elected at the primary election submitted documents to INEC 4th respondent making a declaration on oath that he had fulfill all the requirements of the Constitution to be a candidate for the PDP at the election to be held on the 11/4/2015. That the Tax documents submitted together with other documents were not correct, having not paid tax for the hence 2011, 2012 and 2013 as and when due. As to when the cause of action arose or accrued, Senior counsel did content that it was on 8/12/14 when appellant as aspirant submitted his documents for the primary election. The case of Williams v. Williams (2008) 10 NWLR (Pt. 1085) P. 364 @ 380 cited to buttress the submissions supra.

What is cause of action? In Ojukwu v. Yar’adua (2009) 12 NWLR (Pt. 1154) P. 50 @ 131, cause of action has been defined as the entire set of circumstances giving rise to enforceable claim. It is in effect, the fact or combination of facts which gives rise to a right to sue and it consists of two elements:
(a) The wrong act of the defendant which gives the plaintiff his cause of complaint; and
(b) The consequent damages.
Ibrahim v. Osim (1988) 3 NWLR (Pt. 82) (1988) 3 NWLR (Pt. 32) 257; Egbue v. Araka (1988) 3 NWLR (Pt. 84) 598.

A cause of action is a set of facts, distinct from the evidence averred in the statement of claim, which the plaintiff must prove to support his right to the judgment of the Court. In other words, a cause of action consists of every fact, which the plaintiff must prove, if traversed, in order to support his claim for judgment C.B.N. v. Manesport S.A. (1987) 1 NWLR (Pt. 18) 669; Egbue v. Araka (1988) 3 NWLR (Pt. 84) 598; Bello v. A-G, Oyo State (1986) 5 NWLR (Pt. 18) 669.

The accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action. See Adimora v. Ajito (1988) 3 NWLR (Pt. 30) P. 1; Egbue v. Araka (1988) 3 NWLR (Pt. 84) P. 598; Bello v. A. G. Oyo State (1986) 5 NWLR (Pt. 18) P. 669 and Ojukwu v. Yar’adua (2009) 12 NWLR (Pt. 1150) P. 50 @ 131.

In determining when the cause of action arose or accrued for the purpose of initiating Suit No. FHC/ABJ/CS/1086/14, the affidavit filed in support of the Suit is germane. In paragraphs 4(a) to (k) the 1st and 2nd respondents as plaintiffs deposed to the holding of the Primary Election of the Peoples Democratic Party (PDP) 3rd respondent. From the depositions in the aforesaid paragraphs of the affidavit in support of the suit filed by the 1st and 2nd respondents, when considered together with the documents contained in INEC FORM CF 001 which the appellant submitted to INEC, 4th respondent on 26/12/14, it is evident that the cause of action arose or accrual on 26/12/16, the date FORM CF 001 was submitted to INEC, 4th respondent, not on 8/12/16 when the appellant submitted same to the P.D.P for purpose of holding primary election. This view is supported by the decision €¢ in the case of Ojukwu v. Yar’adua (2008) 12 NWLR (Pt. 1150) P. 50 @ 131, where it is stated that the accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action. See also Adimora v. Ajifo (1988) 3 NWLR (Pt. 30) P. 1 and Egbue v. Araka (1988) 3 NWLR (Pt. 840) P. 598.

The provisions of section 31(1), (2) and (3) of the Electoral Act, 2010 throw more light or reveal when the cause of action ought to accrued or arisen. Section 31 (1), (2) and (3) of the Electoral Act provides:
“31. (1) Every political party shall not later than 60 days before the date appointed for a general election under the provisions of this Act submit to the Commission, in the prescribed forms, the list of the candidates the party proposes to sponsor at the elections, provided that the commission shall not reject or disqualify candidate(s) for any reason whatsoever.
(2) The list or information submitted by each candidate shall be accompanied by an Affidavit sworn to by the candidate at the Federal High Court, High Court of a State or Federal Capital Territory, indicating that he has fulfilled all the constitutional requirements for election into that office.
(3) The Commission shall, within 7 days of the receipt of the personal particulars of the candidate, publish same in the constituency where the candidate intends to contest the election.”

It is after the Electoral Commission has acted, by publishing the names of the candidates in the Constituency under sub section 7 of section 31 of the Electoral Act, that any person may apply under subsection 4 of the Act for a copy of ‘the documents submitted by a candidate. Thereafter, if the person who has applied and obtained a copy of the documents submitted by the candidate finds that the documents so submitted contain false information, then he can approach a Court of law seeking for the disqualification of the candidate. All the foregoing acts cannot take place before the submission of the documents on the 26/12/16 to INEC, therefore, the cause of action accrued on that date. It is in view of the foregoing that the institution of the Suit No. FHC/ABJ/CS/1086/14 on the 22nd of December, 2011 by the 1st and 2nd respondents was earlier than the accrual of the cause of action. The law is trite, any action initiated or instituted before the accrual of the cause of action, cannot be valid. For there cannot be a competent action before the accrual of cause of action. Therefore, the suit filed by the 1st and 2nd respondents on the 22/12/14 before the submissions of FORM CF 001 to INEC on 26/12/14, cannot be competent. Where an action or suit is initiated or commenced without cause of action, it is incompetent, and liable to be struck out. The case of Ojukwu v. Yar’adua (2009) 12 NWLR (Pt. 1150) P. 50 @ 132 is very instructive. It was held that where and when a Court comes to the conclusion that a plaintiff has no cause of action, the Court can strike out the action. The lower Court, if it had considered whether there was cause of action disclosed as at 22/12/14 when Suit No. FHC/ABJ/CS/1086/14 was commenced by the 1st and 2nd respondent, it would have realized that there was no cause of action to have sustained the suit filed by the 1st respondent and 2nd respondent. It would have then struck out same for being incompetent. Having found that the Suit No. FHC/ABJ/CS/1086/14, instituted at the lower Court is incompetent by reason of having been initiated without the accrual of cause of action, I do hereby make an order striking out the suit.

Consequently, having struck out Suit No. FHC/ABJ/CS/1086/14, the entire proceedings including the judgment of that Court are but a nullity, same can be struck out for there is nothing it can stand on. Eso, J.S.C, (of blessed memory) in the cases of Skenconsult (Nig.) Ltd & Ors v. Ukey 1981 S.C P. 1 @ 9 cited and relied on the case of Macfoy v. UAC Ltd 1962. A.C. 15, 2, where Denning J, said:
“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” (Underlining mine)
I resolve Issue 2 in favour of the appellant.

ISSUE 3
Whether having regards to the facts and circumstances of the case, the learned Judge of the lower Court was right in its findings that the action can be determined under the Originating Summons procedure? Chief Olanipekun SAN, of learned Senior counsel, who settled the appellant’s brief of argument, did submit that a critical examination of the originating summons and the depositions in the affidavit in support would reveal that it is not the interpretation or construction of the provisions of law that are not involved but it is the application of the provisions of section 31 of the Electoral Act, 2010 (as amended) and section 24 (f) of the 1999 Constitution (amended). That the appellant had disputed the assertion by the 1st and 2nd respondents that he had submitted documents containing false information to the 4th respondent, INEC. That the appellant had adduced evidence, including tax documents from the Abia State Internal Revenue Services to disprove the assertion of the 1st and 2nd respondents. That in view of the foregoing, an inquiry by a Court of law into the assertion of the 1st and 2nd respondents is imperative in order to ascertain the truthfulness or otherwise of the assertion.

Senior counsel further contended that having regards to the reliefs sought by the 1st and 2nd respondents in the originating summons, they are declaratory in nature, which cannot be granted without the parties adducing credible evidence. That same are not grantable on affidavit evidence. The case of Nasco Tow Pic v. Nwabueze (2014) LPELR-22526 (CA) @ 22-23 and the provisions of Order 3 rule 7 of the Federal High Court (Civil Procedure) Rules) 2009 were cited and relied on to buttress the submissions supra. Concluding, senior counsel urged that the issue be resolved in favour of the appellant.

For the 1st and 2nd respondent, Dr. Izinyon, SAN, of learned Senior counsel did submit that the learned trial Judge of the lower Court was right in holding that the originating summons procedure was appropriate for the determination of the action filed by the 1st and 2nd respondents.
Senior counsel referred to Order 3 rule 7 of the Federal High Court (Civil Procedure) Rules and contended that the action was rightly commenced by the originating summons procedure. It was further submitted that the case of the 1st and 2nd respondents at the lower Court had been predicated on the submission of false information to INEC, the 4th respondent, which is contrary to section 31(1)(2)(3)(4)(5)(6) of the Electoral Act, 2010. That the dispute at the lower Court was whether FORM CF. 001 submitted to the 4th respondent, INEC by the appellant contained false information or not, and if so, whether the appellant was disqualified to contest the primary election conducted by the 3rd respondent or not. The cases of Jev. v. Jyortom (2014) FWLR (Pt. 747) P. 749 @ 777, among others were cited and relied on to reinforce the submissions supra. Senior counsel further contended that there were no allegations of the commission of any offence under the Personal Income Tax Act nor section 118(k) of the Electoral Act, 2010 (amended). That the contention of the appellant that the originating summons of the 1st and 2nd respondents commencing the suit at the lower Court alleges the commission of crime, therefore, the said suit was not suitable for adjudication under the Originating Summons Procedure, cannot be correct. That there are no allegations of forgery nor perjury as alleged by the appellant. As to the contention that the reliefs sought by the 1st and 2nd respondents are declaratory in nature, Senior counsel submitted that far from it. Concluding, Senior counsel did urge that this issue be resolved against the appellant.

Was the learned trial Judge of the lower Court right or justified in his decision that Suit No. FHC/ABJ/CS/1086/2014 was properly initiated by the originating summons procedure? Order 3 rule 2(a) of the Federal High Court Civil Procedure Rules 2009 provides thus:
“Proceedings may be begun by originating summons where:
(a) The sole or principal question at issue is, or likely to be one of the construction of a written law or of any instrument made under any written Jaw, or of any deed, will, contract or other document or some other question of law… ”

Originating summons is simply a mode of procedure to which recourse is made where the circumstances are such that there is no dispute of facts or likelihood of such dispute. Where there is a dispute on facts requiring the setting of pleadings to resolve such issue of facts, there can be no recourse to originating summons. In Ezeigwe v. Nwalulu (2010) 4 NWLR (Pt. 1183) P, 169 @ 191, it was held that:

“It is settled €¢ Jaw that originating summons procedure is adopted where the sole or principal question at issue is, or is likely to be that of the construction of a written law or of any instrument made under any written law or any deed, will, contract or other document or any substantial dispute of fact relevant to the determination of the issue in controversy”.

Originating summons is an unusual procedure or method of commencing proceedings in the High Court. It is best suited for cases where there are no substantial dispute of facts, or there is no likelihood of their being in dispute and when the sole, or principal question in issue, is or likely to be one directed at the construction of a written law, Constitution, or any instrument, or deed, Will, contract, or other document, or other question of law, or circumstances where there is not likely to be any dispute as to facts. Originating summons being a procedure for the determination of disputes on affidavit evidence and thereby rendering the calling of witnesses and examination of witnesses rarely necessary, has been recognized as a judicial means of achieving expeditious hearing of deserving cases.

See Etim v. Obot (2010) 12 NWLR (Pt. 1207) P. 108 @ 156 and Omojula v. Oyateru (2009) All FWLR (Pt. 453) P. 1318. It must be noted that the mere filing of a counter-affidavit in response to the supporting affidavit of an originating summons does not automatically make the matter one in which oral evidence must be adduced and thereby necessitating the ordering of pleadings. Where the conflicts in the affidavit evidence of the parties are not material to the case or where the facts therein are inadmissible, the Court is not saddled with the responsibility of calling oral evidence. Where the areas of conflict are so narrow and insignificant, the need to call oral evidence and thereby necessitating the ordering of pleadings will not arise. Also, where the conflict in the affidavit evidence can be resolved on available documentary evidence before the Court, oral evidence need not be called and a fortiori pleadings need not be ordered.

The Amended Originating summons are on pages 563 to 563. There are two questions posed for determination. The reliefs sought are on pages 564 to 565. There is an affidavit filed in support of the originating summons on pages 568 to 569. There is a 26 paragraphs counter affidavit of Mr. J. C. Okoji, Director of Direct Taxes of Abia State Internal Revenue Services. In these paragraphs of the Counter-affidavit the deponent deposed to facts explaining the contradictions and inconsistencies in the payment of tax by the appellant illustrating each point with tax receipts and Tax Clearance Certificates, how the tax was paid by the appellant and the reasons for the apparent discrepancies in the documents submitted to INEC by the appellant regarding payment of tax by him during the relevant periods, 2011, 2012 and 2013. See pages 629 to 635 of Vol. 1 of the record of appeal. The 1st and 2nd reliefs sought by the 1st and 2nd respondents are declaratory. They are the principal reliefs upon which the rest of the reliefs are hinged, and their being granted or not all depends on the two principal reliefs enumerated supra.

It is also significant to note that the provisions of sections 31(8) and 118(k) of the Electoral Act create offences for the submission of names of candidate to INEC who does not meet the qualifications stipulated, and the punishment for the commission of such offence has been provided for. Declaratory reliefs are only grantable on cogent and credible evidence adduced by a claimant. Sections 31(8) and 118(k) of the Electoral Act create criminal offences which must be proved beyond reasonable doubt as required by section 135(1) of the Evidence Act, 2011. In view of the foregoing adumbration, the facts and the evidence upon which the issues raised by the Amended Originating Summons could not have been resolved easily on the affidavit credence before the lower Court for they are hostile in nature.

Where the facts of€¢ a dispute are likely to be in dispute, the originating summons procedure cannot be restored in resolving or determining disputes. See Asogwa v. PDP (2013) 7 NWLR (Pt. 1353) P. 207 @ 284, where the Apex Court held that; the procedure of originating summons ought not be used where the facts are likely to be in dispute.

The learned trial Judge of the lower Court was therefore not right in his findings and decision that Suit No. FHC/ABJ/CS/1086/2014 was properly initiated by the originating summons procedure. Issue 3 is resolved in favour of the appellant.

ISSUE 4
Whether the lower Court did not delve into the substantive suit when €¢considering the preliminary objection in its interlocutory decision? Chief Olanipekun SAN, of learned Senior Counsel submitted that when considering the preliminary objection by the appellant on the issue of lack of locus standi of the 1st and 2nd respondent to institute Suit No. FHC/ABJ/1086/2014, and non-disclosure of cause of action at the time it was commenced on the 22/12/14, the lower Court delved into and took decisions touching or concerning issues in the substantive suit. Senior Counsel contended that a Court has no jurisdiction or power to delve into the substantive suit when ruling in an interlocutory issue on preliminary objection raised by any of the parties. That a Court cannot and should not pronounce on the merit of any issue in the substantive action in an interlocutory ruling or decision. The cases of Nwakwo v. Yar’adua (2010) NWLR (Pt. 1209) P. 518 @ 54 and Odon v. Bariga-Amange (No. 2) (2010) 12 NWLR (Pt. 1207) P. 13 @ 28 were cited and relied on€¢ to reinforce the submissions supra.

Senior Counsel went further to contend that the lower Court had taken decision on the issue in the substantive action when he used the words “offensive”, “false”, “told a lie” in referring to the information submitted to INEC by the appellant. That having taken such a decision, there were nothing left for the Court to decide in the substantive suit; the Court has had already reached a decision by the usage of such words or phrases. The cases of Trade Bank Plc v. Chami (2003) 13 NWLR (Pt. 836) P. 158 and Anuforo v. Oblilor (1997) 11 NWLR (Pt. 530) P. 661 @ 674 cited to buttress the submissions supra. Senior counsel concluded by submitting that by taking a decision in the interlocutory ruling on the preliminary objection without affording the appellant the opportunity to be heard before taking such decisions, his right to fair hearing has been breached occasioning a miscarriage of judgment to him. As to what constitutes breach of fair hearing, counsel cited and relied on the case of Mohammed v. Kano N. A (1968) 1 ALL NLR P. 44 where it has been held that it is the opinion or impression of a reasonable person who has been observing the proceedings as to what he thinks of the process and proceedings of the Court, whether fair hearing has been afforded to the appellant or not.

For the 1st and 2nd respondent, Dr. Izinyon SAN, of learned senior counsel, contented that the lower Court did not decide on the issue of qualification or disqualification of the appellant in the ruling when considering the preliminary objection. That the finding of the Court was on the 1st and 2nd respondents’ locus standi to initiate the suit, and the accrual of the cause of action. It was further submitted that it is only where a trial Court delve into the substantive suit in an interlocutory ruling that a miscarriage of justice could be occasioned to the appellant. That such a decision could be set aside. The cases of Onyesoh v. Nneuchie (1992) 3 NWLR (Pt. 229) P. 315 @ 335; Adamu v. Nasarawa State (2007) 6 NWLR (Pt. 105) P. 485 and Obiaha v. Military Administrator, Imo State (1998) 10 NWLR (Pt. 569) P. 205 cited to buttress the submissions supra.

Senior counsel further contended that a mere reference to an issue in the substantive suit in an interlocutory ruling without more cannot be a ground to void the ruling. That the contention of learned senior counsel to the appellant that the lower Court took a decision on an issue in the substantive suit cannot be correct, it is a misconception. That there was no breach of the appellants right to fair hearing because the ruling of the lower Court centered on the processes filed before the lower Court. That the decision of the lower Court was not tainted with bias, it is therefore not correct as alleged by the appellant. Counsel did urge that this issue be resolved against the appellant.

Whether the lower Court took a decision in the ruling touching on the issues in the substantive suit or not, it is imperative to examine the record of appeal. On page 1080 of the record, the learned Judge in his ruling on locus standi and cause of action held that:

“without the 3rd defendant submitting the documents containing false information to the 1st defendant to enable contest the defendant’s primary on 8th December, 2014, the 1st defendant would not have submitted the documents on 26th December, 2014 to the 2nd defendant. Therefore, the cause of action accrued before the documents containing false information were submitted on 26th December, 2014.” (Underlining mine)

Also on pages 1081-1082, the lower Court held that:

”In any event, the 3rd defendant submitted documents containing false information on his tax papers to the 1st defendant on or before 8th December, 2014 for him to be nominated as a party candidate for Abia State Governorship Election. Therefore, the cause of action arose before 22nd December, 2014 that the suit was filed to restrain the 1st defendant from accepting the 3rd defendant’s particulars inclusive of the offensive tax papers as part of Exhibit A2 attached to the amended originating summons.” (Underlining mine)

The forgoing findings of the lower Court in the ruling on the preliminary objection obviously would affect the mind of the learned trial Judge when considering the substantive suit having taken a decision on the status of the tax papers attached to the originating summons as “offensive” and “false” information, which the lower Court later decided in the judgment in the substantive suit. The findings on the ruling reproduced supra should not have been taken before considering the substantive suit on the merit, after both parties might have been heard or their affidavit evidence been considered by the Court. That a decision taken in an interlocutory ruling which would later be an issue in the substantive suit is not proper as it could affect the mind of the learned Judge to favour the other party to the dispute has been reinforced to the cases of Trade Bank Plc v. Chami (2003) 13 NWLR (Pt. 836) P.158 P. 196-197, in a similar situation or circumstances as in this extant appeal. It was held that:
“In the instant case, the learned trial Judge while reviewing the evidence called by parties made the following adversary or damaging remarking:€¦
There is no or dispute that the learned trial Judge made the above remarks at the initial stage of his judgment and while setting down the case as presented by both parties to the dispute. At most, it was the stage in which the plaintiff/appellant was required to establish a prima facie case. I am therefore of the humble view that under the principle of the above cited authorities, (particularly Anuforo v. Obilor (supra), it was too early and out of place for the learned trial Judge to make the conclusions or findings of facts on the evidence or on its probative value as he did in his above quoted remarks. If anything, the adverse remarks made against the appellants case at that stage, only gives the impression that the learned trial Judge was leaning unfairly against the appellant and in favour of the respondents.” (Underlining mine)

In Mbanefo v. Molakwu (2014) 6 NWLR (Pt. 1403) P. 377 @ 416, the Apex Court stated that there should be no negative finding or resolution of an issue which would be prejudicial to any of the parties before considering the matter on the merits otherwise it would tantamount to pre-judging the issue. In case of Mohan1med v. Kano Native Authority (1968) 1 ALL NLR P. 411, the Supreme Court provided the parameter for testing whether a particular act could be a breach of fair hearing to be the impression of an unbiased reasonable bystander who had observed the proceedings. In the instant case, what would an unbiased by-stander say of the pronouncements of the lower Court on pages 1080, 1081-1082 of the record of proceedings. Where a decision of a Court has breached a party’s right to fair hearing, such an act, or decision is to be set aside. See Agpamgbo-Okadigbo v. Chidi (No. 2) (2015) 10 NWLR (Pt. 1466) P. 124 @ 197; Salu v. Egeibon (1994) 6 NWLR (Pt. 348) P. 23 @ 44 and Tsowa Motors v. UBA Plc (2008) 2 NWLR (Pt. 1071) P. 747. The comments on the preliminary objection in ruling of the lower Court referred to supra having breached the appellant’s right to fair hearing ought to be set aside. I so make the order.

This issue is resolved in favour of the appellant.

Having resolved Issue 1, 2, 3 and 4 in favour of the appellant, the appeal succeeds. The judgment of the lower Court delivered in Suit FHC/ABJ/CS/1086/2014 on the 27th of June, 2016, is hereby set aside. The appellant is entitled to costs assessed at N100,000.00, same is awarded to him against the 1st and 2nd Respondents. The 3rd and
4th respondents have not filed briefs of argument in the appeal, therefore, are not entitled to cost.

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Other Citations: (2016)LCN/8978(CA)