Elder Dr. Friday Sani V. Kogi State House Of Assembly & Ors (2019)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, C.J.N.

This is an appeal against the judgment of the Court of Appeal Holden in Abuja in appeal No. CA/A/540/2018 delivered on the 20th day of March, 2018 in which the Court allowed the appeal of the present respondents against the judgment of the Kogi State High Court in suit No. IDHC/6/2017 delivered on the 29th day of June, 2017 which was accordingly set aside. The lower Court remitted the suit to the Honourable Chief Judge of Kogi State to be assigned to another Judge for trial by pleadings.

The appellant. as claimant before the Kogi State High Court No. 2 Lokoja instituted an action against the respondents by way of Originating Summons and sought 19 reliefs.

The questions submitted to the trial Court for determination are as follows:

1. WHETHER Order 10 Rule 1 of the Standing Rules of the Kogi State House of Assembly is not offensive to the spirit and letters of the Nigerian Constitution (as amended), undemocratic, illegal; null and void, insofar as it empowers members of the majority party in the House of Assembly of Kogi State,

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to determine and/or elect, who represents the minority party, as their (minority) leader, in the State House of Assembly.

2. WHETHER the All Progressives Congress, controlled 1st defendant presided over by the 2nd defendant did not act wrongfully, and their said action liable to be set aside, when they discountenanced the nomination letter of 20th March, 2017 vides which majority members of the minority party in the State House of Assembly elected, and communicated their election of the Plaintiff as their leader at the Kogi State House of Assembly.
3. Assuming but not conceding to the legality of Order 10 Rule 1 of the Standing Rules of the Kogi State House of Assembly, WHETHER the purported allocation of the position of minority leader to the 3rd defendant by the 1st and 2nd defendants when neither nomination nor election was conducted, is not illegal, null and void
4. WHETHER the purported emergence of the 3rd defendant as the minority leader on the determining choice of the majority party members and despite the protestation of the minority party members whom he is meant to represent, is not illegal, null or void and liable to be set aside.<br< p=””

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WHETHER the Plaintiffs Presentation of a motion on a matter of urgent public importance titled Save the Souls of Kogi Workers and dated 17th January 2017 on the floor of the Kogi State House of Assembly, is wrongful and justifiable as a reason for 3rd defendant or any member of his executive or the members or any member of the 1st defendant to express in words action, any animosity towards the Plaintiff.

6. WHETHER the 1st defendant has the power to suspend or purport to suspend the plaintiff from the performance of his legislative duties
7. WHETHER in view of the determination of questions 1, 2, 3, and 4 above, the 3rd defendant is entitled to remunerations for the office of minority leader of the Kogi State House of Assembly from the 21st March , 2017 when he purported assumed to that position.
8. WHETHER the Plaintiff is not deemed to have been properly elected to the position of the minority leader of the Kogi State House of Assembly from 21st March 2017, when his nomination and election by the minority members of the 1st defendant was communicated the 2nd defendant and thus entitled to all the privileges and entitlement thereof.

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WHETHER the 1st and 4th defendants have the powers, to unilaterally create additional two principal offices/position or any office/position at all in the 1st defendant assembly, when there is no provision in any law, or the rules of the 1st defendant enabling the action.”

Thereafter appellant as plaintiff claimed the following nineteen reliefs:

“1. A DECLARATION that Order 10 Rule 1 of the Standing Rules of the Kogi State House of Assembly is offensive to the spirit and letters of the Nigerian Constitution (as amended), undemocratic, illegal, null and void, insofar as it empowers members of the majority party in the House of Assembly of Kogi State, to determine and/or elect, who represents the minority party, as their leader, in the House of Assembly.

2. A DECLARATION that the All Progressives Congress’ controlled 1st defendant presided over by the 2nd defendant acted wrongfully, and their said action liable to be set aside, when they discountenance the nomination letter of 20th March, 2017 vides which majority members of the minority party in the State House of Assembly elected, and communicated their

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election of the Plaintiff as their leader at the Kogi State House of Assembly.

3. A DECLARATION that the purported allocation of the position of minority leader to the 3rd defendant by the 1st defendant when neither nomination nor election was conducted is illegal, null and void.
4. A DECLARATION that the purported emergence of the 3rd defendant as the minority leader on the determining choice of the majority party members, and despite the protestation of the minority party members whom he is meant to represent, is illegal, null and void, and liable to be set aside.
5. A DECLARATION that the Plaintiff’s presentation of a motion on a matter of urgent public importance titled, “Save the souls of Kogi workers” and dated 17th January, 2017 on the floor of the Kogi State House of Assembly, is neither wrongful nor justifiable as a reason, for either the 4th defendant, any member of his executive, or the members of the 1st defendant to express in words or action, any animosity towards the Plaintiff or victimize him under the guise of discipline, suspension or any guise whatsoever
6. A DECLARATION that the 1st defendant has no powers to suspend,

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or purport to suspend the Plaintiff from the performance of his legislative duties.

7. A DECLARATION that the 3rd defendant is not entitled to remunerations for the office of minority leader of the Kogi State House of Assembly, from 21st March, 2017 when he purportedly assumed to that position or at all.
8. A DECLARATION that the Plaintiff is deemed to have been properly elected to the position of the minority leader of the Kogi State House of Assembly from 21st March, 2017, when his nomination and election by the minority members of the 1st defendant was communicated the 2nd defendant, and thus entitled to all the privileges and entitlements thereof.
9. A DECLARATION that the 1st and 4th defendants have no powers, to unilaterally create additional two principal offices/positions or any office/position at all in the 1st defendant assembly, when there is no provision in any law, or the rules of the 1st defendant enabling the action.
10. AN ORDER setting aside Order 10 Rule 1 of the Standing Rules of the Kogi State House of Assembly insofar as it empowers members of the majority party in the House of Assembly of Kogi State, to determine

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and/or elect, who represents the minority party, as their leader, in the House of Assembly.

11. AN ORDER setting aside the purported election of the 3rd defendant under whatever guise and name called, to the position of minority leader of the Kogi State House of Assembly.
12. AN ORDER of perpetual injunction restraining the 3rd defendant from parading, or further parading himself, as the minority leader of the Kogi State House of Assembly.
13. AN ORDER of perpetual injunction, restraining the defendants, whether jointly or severally, by agents, privies or assigns, from recognizing the 3rd defendant as the Minority Leader of the Kogi State House of Assembly and/or giving any remuneration in respect of that office to the 3rd defendant.
14. AN ORDER directing the 3rd defendant to refund every and any remuneration received by him in connection with the office of, or in capacity of minority leader of the Kogi State House of Assembly, from 21st March, 2017 when he purported assumed to that position.
15. AN ORDER reinstating the Plaintiff to the position of minority leader of the Kogi State House of Assembly forthwith.<br< p=””

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AN ORDER directing the defendants, to compute and pay, and continue paying to the Plaintiff forthwith all the entitlements and allowances accruing to him as the minority leader of the Kogi State House of Assembly from 21st March. 2017.

17. AN ORDER setting aside the additional two principal offices/positions, i.e deputy minority leader, and deputy minority whip, which was unilaterally created in the 1st defendant assembly without any instrument or enabling law in the behalf
18. AN ORDER OF PERPETUAL INJUNCTION, restraining the defendants, whether in collaboration with each other or not from taking any step, or doing anything, either by way of invitation for explanation, or attempt to find fault with the aim of suspension insofar as same will prejudice the Plaintiff in his legislative duties and office.
19. AN ORDER of perpetual injunction restraining the 1st defendant from suspending, or attempting to suspend the Plaintiff from his legislative duties.”In support of the Originating Summons was an affidavit of 28 paragraphs to which Exhibits A, B & C were attached. The respondents herein as defendants filed their counter affidavit in opposition to the originating summons.

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During the pendency of the proceedings, appellant was suspended by the 1st respondent from the plenary sittings of the House of Assembly “Pending the final outcome of the litigation in Court.”

On 5th June, 2017, certified true copy of votes and proceedings and the motion moved to suspend the appellant was tendered from the Bar and admitted in evidence without any objection from the respondents, and marked as Exhibit CI.

On 29th June, 2017, the trial Court delivered its judgment and upheld, in part, the reliefs claimed by the appellant. In particular, appellant relief 6 was upheld. This relief is for:

“A declaration that the 1st defendant has no powers to suspend or purport to suspend the plaintiff from the performance of his legislative duties.”

The respondents were dissatisfied with the judgment of that Court and filed a Notice of Appeal on 21st July, 2017 containing 3 grounds of appeal in the Court below. Appellant herein filed his brief of argument and raised objection to the competence of the appeal and the jurisdiction of the Court to determine same.

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On 20th day of March, 2018, the Court of Appeal, Abuja Judicial Division delivered its judgment allowing the respondents’ appeal and remitted the suit to the Honourable Chief Judge of Kogi State to be assigned to another judge for trial by filing pleadings instead of by way of Originating Summons.

Being dissatisfied with the decision of the Court below, appellant filed a Notice of Appeal on 22nd day of March, 2018.

1st Respondent filed his brief of argument on 4th day of June, 2018, 2nd and 3rd respondents filed the brief of argument on 4th day of June, 2018 while 4th to 7th respondents’ filed their respondent brief on 4th June, 2018.

The appellant in this appeal set out 2 issues for determination in his brief of argument.

At the hearing of the appeal before this Court on the 31st day of October, 2018, respective counsel to parties adopted their briefs of argument.

Consideration of issues raised in argument by the appellant.

It is worthy to note that issues raised by both counsel in their briefs of argument are similar and I therefore adopt the appellant’s issues and shall treat the appeal thereupon.

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ISSUE NO 1

“Whether the Court below violated the right to fair hearing of the appellant when it granted reliefs not sought by the respondents in their notice and grounds of appeal and to proceed to hold in judgment that the suit be remitted to the Hon. the Chief Judge, Kogi State to be assigned to another judge for trial by pleadings. (Grounds 1, 2, 4 & 5 Notice and Ground of appeal).”

Upon raising this issue, the learned senior Counsel for the appellant, J.S. OKUTEPA, SAN urged this Court to resolve it in favour of the appellant and to hold that the Court below was in error in coming to that conclusion. Appellant’s senior Learned Counsel submitted that the Court below was wrong when it went outside the purview of the notice of appeal of the respondents and travelled on a voyage of discovery to grant reliefs and made orders not sought by the respondents in their notice and grounds of appeal filed on 20th July, 2017; whereas, the learned Counsel for the appellant formulated a sole issue for determination of the appeal at the Court below, thus:-

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“Whether the trial Court was right to have admitted Exhibit CI when same was not pleased or evidence led in respect -thereof and placed heavy reliance on it in its judgment.”

He further contended that the Court below violated appellants right to fair hearing when it raised an issue suo motu and determined same without hearing the parties and decided the appeal based on the issue so raised suo motu: that the issue whether the facts of the suit before the trial Court was in dispute or contentious was not raised by the parties even at the Court below. He urged this Court to set aside the judgment of the Court below and restore the judgment of the trial Court including reliefs sought in the notice grounds of appeal.

It is to be noted that the briefs filed by the 1st to 7th respondents, by three different counsel are in substance the same. I shall therefore take their arguments jointly.

The learned counsel to 1 – 7 respondents submitted that contrary to the argument of the appellants counsel that respondents complained only about admissibility of Exhibit CI the respondents’ notice of appeal before the Court below was quite clear in that it contested the admissibility of Exhibit CI by the trial

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Court on the ground that it was not pleaded and that heavy reliance placed on the document by the trial Court in its judgment was contrary to Order 2 Rule 8(2) of the High Court of Kogi State (Civil Procedure) Rules 2006; that the order of the Court below, remitting the case for trial by pleadings was a consequential order, which it had the inherent powers to make, and referred the Court to the case APC vs. Karfi (2018) 6 NWLR (pt. 1616) 479 S.0 and also Section 15 of the Court of Appeal Act.

Finally, they urged the Court to uphold the judgment of the Court below and dismiss this appeal with substantial costs against the appellant.

What type of action/case is Originating Summons Procedure best suited I will commence by throwing more light on an Originating Summons Process. In the case of Hussaini Isa Zakirai vs. Salisu Dan Azumi Muhammad & Ors (2017) LPELR – 42349 (SC), this Court has this to say:

“In effect, Originating Summons is a procedure wherein the evidence is mainly by way of documents and there is no serious dispute as to their existence in the pleadings. It is usually heard on affidavit evidence and involve questions of law rather than issues of fact.”

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By the above proposition, Originating Summons is best suited for cases where there are no substantial disputes of facts or likelihood of facts. In the case of Standard Cleaning Services Company vs. the Council of Obafemi Awolowo University, Ile lfe (2011) 14 NWLR (pt. 1269) 193 at 204 – 205 213 the Court held that:

“Originating Summons should only be applicable in circumstances where there is no dispute on the question of facts or even the likelihood of such dispute. Application for initiating contentious issues of facts where the facts of the plaintiff leave matter for conjecture, Originating Summons is not appropriate procedure. Where it is obvious from the state of the affidavit that there would be an air of friction in the proceedings. then an Originating Summons is not appropriate. Originating Summons should he used only where the proceeding involves question of law, rather than disputed facts, even where the facts are not in dispute, the Originating Summons should not be used, if the proceedings are hostile.”

The question is: What is the nature of the appellant’s relief No. 6 at the trial Court It claims as follows:

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“6. A DECLARATION that the 1st defendant has no powers to suspend, or purport to suspend the Plaintiff from the performance of his legislative duties.”

From the decided cases cited was the above relief best suited for an action commenced by Originating Summons

It is the submission of the appellants counsel that their proceeding at the trial Court was not hostile; neither was there any contentious facts therein between the parties, more importantly as the respondents did not raise objection to their reliefs/claimed and proceedings at the trial Court, except when they raised a sole issue for determination of their appeal at the Court below. concerning the admission of Exhibit CI by the trial Court.

The substantive issue for determination before the trial Court as contained in the Originating Summons

(1) Whether the 1st Defendant/Appellant has the power to suspend, or purport to suspend the plaintiff from the performance of his legislative duties.

(2) A Declaration that the 1st defendant has no power to suspend or purport to suspend the plaintiff from the performance of his legislative duties.

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The fact that appellant was suspended from Kogi State House of Assembly for exercising his fundamental right of access to Court was not in dispute. It therefore means that issue of whether the respondents can suspend the appellant from his legislative duty becomes a question of law and construction of the Constitution.

From the record of the trial Court, there was no dispute that appellant was suspended by the respondent because he filed suit No. lDHC/6/2017. To my mind, the substantial question raised by the appellant can be properly adjudicated upon by Originating Summons.

In Pam vs. Mohammed (2008) 16 NWLR (pt. 1112) 1 @ 89-90 this Court held that:

“It is not the law that once there is dispute of facts, the matter should be commence by writ of summons. No, that is not the law. The law is that the dispute of facts must be substantial, material, affecting the live issues in the matter: Where disputes are peripheral, not material to the live issues, an action can be sustained by Originating Summons. After all, there can hardly be a case without facts. Facts make a case and it is the dispute in the facts that give rise to litigation.”

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Appellant’s learned Counsel contended that the Court below violated his client’s Fight to fair hearing when it raised an issue suo motu and determined same without hearing the parties and decided the appeal based on the issue so raised suo motu

It is within the competence of a Court to raise a point suo motu for the purpose of serving the interest or course of justice. However, it is also incumbent on the Court to invite parties, particularly the party that may adversely be affected as a result of point raised suo motu, to address it on such a point before basing its decision thereupon.

This Court inEgbuchu V Continental Merchant Bank Plc (2016) 8 NWLR (Pt. 1513) 192 at 208 – 209 held thus:

“Now the law is that a Court is not entitled to raise an issue suo motu and decide on it without affording the parties an opportunity to be heard. This is because in doing so, the Court is seen to leave its exalted position as impartial arbiter and descend into the arena of conflict.

See the following case:

Kuti V Balogun (1978) 1 SC-53 at 60: Obawole V Williams (1996) 10 NWLR (Pt. 477) 146:

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Omokuwajo V. FRN (2013) 9 NWLR (Pt. a1359) 300 Ominiyi V Alabi (2015) 6 NMLR (Pt. 1456) 572.

An appellate Court is not entitled to raise an issue not raised by either at the trial Court or on appeal and base its decision thereon without affording the parties an opportunity to be heard.”

Again in the case of: Olusanya vs. Olusanya (1983) 14 NSCC 97 at 102; (1983) 1 SCNLR 134 at P. a139 this Court stated the principle regarding raising an issue suo mou by the Court thus:

“This Court has said on a number of occasion that although an appeal Court is entitled, in its discretion, to take points suo motu, if it sees fit to do so, yet that decision must be exercised sparingly and in exceptional circumstance only: Where the points are so taken, the parties must be given the opportunity to address the appeal Court before decision on the points is made by the appeal Court.”

In the case of ODEDO V. OGUEBEGO (2015) 13 NWLR (Pt. 1476) 229 at 393 the Court held It is trite law that once a party’s right to fair hearing as guaranteed by Sec. 36(1) of 1999 Constitution has been breached, the decision reached, no matter how well considered, would be declared a nullity and bound to be set aside.”

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There being no evidence on record that learned counsel were heard on the point raise suo motu by the lower Court on which it based its decision. It is my considered view that decision so reached in the circumstance is vitiated bar the breach of the right of fair hearing of the appellant and liable to be set aside. The next question is: was Exhibit C 1 properly admitted and used by the trial Court before arriving at its decision

It is the contention of the respondents that the procedure of tendering Exhibit C1 and its admission by the trial Court was contrary to law and offends the principle of fair hearing whether objected to by parties or not. Appellant, on the other hand, submitted that Exhibit C i is admissible in law: that even the Court below found that exhibit to be admissible in it Judgment.

The respondent counsel submits that whether a party, as in this case the respondents, who had the opportunity to object to the admissibility of Exhibit C1 at the trial Court and refused/failed to object to same can now raise objection at the appellate Court

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The learned senior counsel referred this Court to the case of Blessing V FRN (2012) 12 NRN 36 that once a piece of documentary evidence is legally admissible and its admission was not opposed by a party, such a party is not allowed to object on appeal. The learned senior counsel further submitted that assuming but not conceding that Exhibit C1 was not pleaded, same is still admissible as the respondents did not object to its admissibility. However, the Court below, in its Judgment delivered on 20th day of March, 2018 at p-pages 400 – 404 of the record of appeal, made the following proposition about Exhibit ‘C’.”

“Now, it seen that the trend of the authorities in both Civil and Criminal cases is that an Appellant who did not raise an objection to the admissibility of a piece of evidence documentary or otherwise may not be allowed to raise it again see the following case:-

(1) R. V. Ellis (1910) 2 KB 746

(2) Wahabi Alao Lawal V. The State (1966) 1 All NLR a107, 107 (1965) NMLR 343.

(3) Sadiku Osho Anor. V. Michael Ape(1998) 8 NWLR 492 (SC).

Thus in Raimi V. Akintoye (1986) 3 NWLR (Pt. 26) 97, this Honourable Court held that where certain documents are

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admissible in evidence upon the fulfillment of certain conditions, an appellant who fails to object to their admissibility in the trial Court cannot do so in the Appellate Court. See also:

(1) Etim V. Ekpe (1983) 1 SCNLR 120

(2) Aminu V. Hassan (2014) 5 NWLR (Pt. 1400) 287 at 322:

(3) Shuaibu V. Muazu (2014) 8 NWLR (Pt. 1409) 207 at 299

Similarly, in Blessing V. FRN (2012) 12 WRN 36, it was held that once a piece of documentary evidence is legally admissible and its admission was not opposed, by a party, such a party is not allowed to object to it on appeal. See also:

(1) Archibong V. State (2006) 14 NWLR (Pt. 1000) 349/377 – 378.

(2) Union Bank V. Sampson Moronfoye (2017) LPELR – 43164.

The Court below went on to say that:

It is equally an integral part of the law of Evidence that documentary evidence need not to be specifically pleaded in order to be admissible in evidence, so long as facts and not the evidence by which such document is covered are expressly pleaded.

In other words, un-pleaded documents, depending on nature of claim, may clearly be seen to constitute evidence

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by which material facts are to be proved and will be admitted as evidence if not pleaded. See.

(1) Ogoro V. Seven-up Bottling Company PLC (2016) 13 NWLR (Pt. 1528) 1 at 29 – 30.

(2) Imam V. Sheriff (2005) 4 NWLR (Pt. 914) 80

(3) Salami Vs. Union Bank of Nigeria Plc (2010) LPELR 8975.

The Court below went further to say that:

From the foregoing, it may be difficult to accept the view of the learned counsel for the Appellant that Exhibit ‘C1’ is not legal evidence and/or that it was wrongfully admitted. I think the more germane contention of the learned counsel for the Appellant here is that Affidavit evidence in Originating Summons is synonymous to pleadings in proceedings by writ. And that evidence adduced on un-pleaded fact even where no objection is raised to its admissibility ought to be discountenanced. I think this is a rule of pleading but it is not in doubt that a Court cannot rely on such piece of evidence in reaching its decision. See Nwaoba V. Ihebie (1990) 2 NWLR (Pt. 134) 589 at 596.

It is the contention of the learned senior counsel for appellant that the Court below having found that Exhibit ‘C1′ was

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admissible, ought to have dismissed the appeal of the respondents’ herein immediately. Based on the above reasons of the Court and decided cases as well as statute referred to in consideration of Exhibit `C1″ I agree completely with the argument of the Learned Senior counsel for appellant and rely on the reasoning of the Court below to the extent of the admissibility of Exhibit C1 in coming to the conclusion that the trial Court was justified in acting on the facts contained in Exhibit C1 to come to the conclusion that the suspension of the appellant by the 1st respondent for instituting this action against the respondents is wrongful and condemnable. Issue No. 1 therefore is answered in the positive and in favour of the appellant.

On issue 2 which is:

Whether the Court below was right to overrule the appellant’s preliminary objection to the competence of the appeal of the respondents and to proceed to hold that the appeal of the respondents not academic, hypothetical or an abuse of Court process.

Learned Counsel for the appellant submitted that the Court below was wrong, with respect, to hold as it did, that the appeal of the respondents

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was not academic, hypothetical or an abuse of Court process, because the respondents filed the appeal to interfere with the due administration of Justice. The learned counsel referred this Court to the case of Orji V. Amara (2016) 14 NWLR (Pt. 1531) 21 at 57. He then urged this Court to uphold the appellant’s preliminary objection and to hold that the appeal of the respondents before the Court below was academic and amounts to abuse of Court process and dismiss it accordingly.

I have perused the argument of both parties at the Court below and this Honourable Court and also the Judgment of the Court below touching on this issue and I agree completely with the reason of the lower Court to the effect that the respondents appeal at the Court below was neither academic hypothetical nor an abuse of the process of Court, since appeal is a constitutional right of an appellant.

That being the case, I accept the Learned respondents counsel’s submissions and I hereby hold that issue No. 2 should be resolved against the appellant and in favour of the respondents.

In conclusion, I am of the considered view that this appeal succeeds in part and order as follows:-

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(1) That Judgment of the Court below be and is hereby set aside.

(2) That Judgment of the trial Court be and is hereby restored and affirmed.

(3) That the respondents be and are hereby ordered to pay the Appellant all his pending salaries, allowances, emoluments and monies due to him and to allow him resume his legislatives duties forthwith.

(4) Cost of this appeal is fixed at N1.000,000 against each set of the respondents and in favour of appellant.

Appeal allowed in part.

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SC.327/2018