Hussaini Isa Zakirai Vs Salisu Dan Azumi Muhammad (2017)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C.

This Appeal relates to a pre-election matter, and it turns substantially on the issue of service outside jurisdiction. The first Respondent filed an action by way of originating Summons against the Appellant and other Respondents at the Federal High Court, Kano [trial Court], wherein he presented the following question for determination-

Whether the 3rd Defendant can publicize, recognize and include the name of the 2nd Defendant or deal with him as the candidate of 1st Defendant (APC) to contest election into Kano State House of Assembly representing Gabasawa Constituency of Kano State scheduled to take place on 28/2/2015, the plaintiff having scored the majority of the lawful votes cast at the primary election held by the 1st Defendant on 2/12/2014 in Gabasawa Local Government Area of Kano State for the purpose of presenting a candidate of the Party for election into Kano State House of Assembly to represent Gabasawa Constituency of Kano State.

The First Respondent, as Plaintiff, also claimed the following reliefs –

1. An order of this Hon. Court directing 3rd Respondent to

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publicize, recognize and include the name of the Plaintiff as the 1st Defendant’s rightful candidate for Gabasawa Constituency of Kano State House of Assembly in the general election scheduled to take place on 28/2/2015.

2. A declaration of Court that the Plaintiff is the rightful candidate of the 1st Defendant who will represent Gabasawa Constituency of Kano State House of Assembly in the general election scheduled to take place on 28/2/2015 having scored the majority of votes cast at the primary election conducted by the 1st Defendant on 2/12/2014 in Gabasawa Local Government Area [LGA] of Kano State for the purpose of producing a candidate of the 1st Defendant for the election.
3. An order of Court restraining the Defendants either through their agents, privies or whosoever claiming on their behalf, from recognizing, treating, publishing, listing or considering the name of 2nd Defendant (sic) as 2nd Defendant’s (sic) candidate to represent Makada constituency of Kano House of Assembly in the general election scheduled to take place on 28/2/2015.

The Originating Summons was filed on 5/2/2015, and the addresses endorsed thereon for service on

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the second and third Respondents, who were the first and third Defendants respectively, were situated at the Federal Capital Territory, Abuja. However, by Motion Ex-parte filed on the same day 5/2/2015, the first Respondent sought and was granted leave to serve the other Parties by substituted means – the second Respondent, Appellant, and fourth Respondent through “Barrister Haruna Falali”, Legal Adviser of Kano State Branch of APC, and the third Respondent [INEC] through its office situated in Kano.

Upon being served, second and fourth Respondents entered unconditional appearance, while the Appellant and third Respondent entered conditional appearance. Initially, one Nura Zubair, Assistant Legal Adviser of APC in Kano State, deposed to a Counter Affidavit filed on 16/2/2015, wherein he averred that he had consent of the second and fourth Respondents to do so. He further averred that –

5. The 1st Defendant indeed conducted primary election into the Kano State House of Assembly Gabasawa constituency.
6. Both the Plaintiff and the 2nd Defendant participated in the primaries having satisfied all the conditions set out by the 1st Defendant

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and the Plaintiff scored 216 votes while the 2nd Defendant scored 32 votes.

7. The 1st Defendant forwarded the name of the Plaintiff. The Plaintiff having won the primaries and having satisfied all the conditions set out by the 1st Defendant.
8. The Plaintiff is the rightful candidate for the election into the House of Assembly of Gabasawa Constituency.

Later, fourth Respondent himself deposed to a Further and Better Counter-Affidavit filed on 27/2/2015, wherein he averred that as the Chairman of APC, Kano (the 1st Defendant), he did not give the said Nura Zubair authority to depose to the earlier counter affidavit “as they do not represent the true position of facts”; and furthermore-

5. That I, as the Chairman of the 1st Defendant knows as a fact that no primary election into the House of Assembly of Gabasawa constituency was conducted by the 1st Defendant on 2/12/2014.
6. That the 1st Defendant did not send the name of anybody to the 3rd Defendant in respect of the said Gabasawa House of Assembly Primary Election.
7. That the Counter Affidavit deposed to by Nura Zubair was done without my consent and knowledge and that of the 1st

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Defendant because of breakdown in communication.

The third Respondent [INEC] filed a Counter-Affidavit to the said Further and Better Counter-Affidavit, wherein the deponent averred-

1. I have read the Further and Better Counter-Affidavit of the 1st and 4th Defendants and wish to state as follows:-

(a) Paragraphs 5, 6 and 8 of the 1st and 4th Defendants Further and Better Counter-Affidavit all are not true

(b) The 1st Defendant conducted its primary election into State House of Assembly Gabasawa constituency on 2/12/2015 and was duly monitored by the 2nd Defendant.

(c) The 3rd Defendant on 25/12/2015 at its National Headquarters Abuja received Form CF001 from the 1st Defendant in the name of the 2nd Defendant as its candidate standing for election into State House of Assembly Gabasawa Constituency. [Said Form annexed as Exhibit A3].

(d) The said Form CF001 was displayed by the 3rd Defendant in compliance with its statutory duty.

(e) The 1st Defendant did forward the name of the 2nd Defendant and same was published in the final list of candidates standing for 2015 General Election.

(f) That the 3rd Defendant

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have no power to list any name in the list of candidates standing for election save the one forwarded by the Political Party.

On 6/3/2015, the Appellant filed a Notice of Preliminary Objection to the competency of the said Suit premised on the following Grounds –

a) That the Originating summons was neither endorsed nor marked as required by the Sheriffs and Civil Process Act and the Enforcement of judgment and Service of the Process Rules.

b) That this trial Court has no jurisdiction to entertain the action on account of the Paragraph (d) above.

c) Any other order or orders as this Honourable Court may deem fit to make in the circumstances of this case.

In all, Parties filed seven series of Affidavits, Counter-Affidavits and Further and Better Counter-Affidavits. They were taken together, and in his Judgment delivered on 11/3/2015, the learned trial Judge, F. O. Riman, J., concluded as follows on the Preliminary Objection –

This originating summons was filed on 5/2/2015 and the address of service endorsed on the originating summons are … However, on 6/2/2015, this Court pursuant to the motion Ex-Parte filed on 5/2/2015 granted

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leave to the Plaintiff to issue and serve the 1st, 2nd and 4th Defendants with the Originating Summons and all other Court processes in this matter by substituted means … It is my considered view that with the intervening order of this Court issued on 6/2/2015 before the service of the Originating Summons outside jurisdiction, the requirements of the Sheriffs and Civil Process Act as provided in Sections 95 to 99 for writ meant for service outside jurisdiction was no longer necessary as service (sic) and to be served in Kano State within jurisdiction. I find as a fact [that] service was properly done in Kano State within jurisdiction.

As to the suit itself, he relied on the decisions of this Court in CPC v Ombugadu (2013) 18 NWLR (1385) 79 SC and Gbileve v. Addingi (2014) 16 NWLR (Pt. 1433) 402 SC, and granted all the reliefs sought by first Respondent, who he added, “remains the 1st Defendant’s candidate to represent Gabasawa Constituency” in the said Election.

Dissatisfied, the Appellant filed an Appeal at the Court below, wherein he formulated the following three issues for determination-

i. Whether the issuance and service of the Originating Summons

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in this Suit was validly done.

ii. Whether the trial Court was right to have assumed jurisdiction to entertain and determine this Suit.

iii. Whether the claims were rightly granted and without resolving the issues and without calling for oral evidence.

The 1st Respondent cross-appealed against this part of its decision –

I am of the view that as a party against whom the Writ was taken out and issued, the 2nd Defendant [i.e. the Appellant] has the inherent legal right to object to its validity on any sustainable ground in law, whether or not the challenge would benefit the 1st and 3rd Defendants [i.e the first and third Respondents herein]

He formulated one issue for Determination in his Cross Appeal i.e. –

Whether in the circumstances of this case, the Appellant has the inherent legal right to challenge the Originating Summons issued and served in this case on the ground of non-compliance with Section 97 of the Sheriff and Civil Process Act.

The Court below was of the view that the Appellant’s first issue flows with the Cross-Appellant’s Issue, and treated both issues together.

At the end of it all, it resolved both Issues against

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the Appellant. It also resolved the Appellant’s second and third Issues against him, and dismissed the main appeal as lacking in merit. However, it found the 1st Respondent’s Cross-Appeal meritorious, and it allowed same.

Aggrieved, the Appellant filed a Notice of Appeal in this Court, which contains fifteen Grounds of Appeal. He formulated five Issues for Determination therefrom in his Brief of Argument and that is-

1. Whether the lower Court was right to have held that leave to issue the Originating Summons, leave to serve the Originating Summons and leave to mark same for service outside jurisdiction are not necessary, not mandatory, has been waived by the 2nd and 3rd Respondents and cannot be raised by the Appellants at all.
2. Whether the lower Court rightly held that issue of substituted service and personal service was not raised both at the trial Court and before the lower Court, and indeed the issue of mode of service is phantom, esoteric and not real
3. Whether the lower Court rightly ignored the failure to mark the summons as concurrent and trial Courts non-consideration of the Further and Better

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Counter-Affidavit in this Suit

4. Whether the lower Court was right to hold that the trial Federal High Court was competent and did competently assume jurisdiction in this case
5. Whether, in the circumstances of this case, the Suit was rightly commenced by Originating Summons and the lower Court rightly found on the Affidavit before it including issues of forgery.

The first Respondent also formulated five Issues for Determination-

1. Whether in the circumstances of this case the leave of the trial Court to issue and mark the Originating summons, which was served within jurisdiction of the 2nd and 3rd Respondents, was necessary and whether the Appellant can raise same.
2. Whether the Lower Court was right when it held that the Appellant did not raise the issue of the validity of the order of substituted service before the trial Court.
3. Whether in the circumstances of this case there was failure from the part of the 1st Respondent to have marked the Originating Summons as concurrent.
4. Whether the trial Court (Federal High Court) has jurisdiction over this matter.
5. Whether the lower Court was right when it

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held that the trial Court was right when it decided the matter before it based on the Affidavit evidence placed before it.

There is a bit of a hiccup regarding second and fourth Respondents’ Briefs of Argument. The Appellant argued in his Reply Brief that the second Respondent’s brief filed on 12/1/2017, was filed out of time, and is, therefore, incompetent. He referred the Court to an Affidavit of Service filed on 23/2/2016, which shows that the second and the fourth Respondents’ counsel was served with his brief on 10/8/2015 and another Affidavit of service filed on 21/11/2016 which shows a “second direct service of his brief was also effected on 17/10/2016.

He urged this Court to strike out the brief since the mandatory provision of Order 6 Rule 5(2) of its Rules, were not complied with.

As the Appellant pointed out, this Court, on 11/1/2017, advised learned counsel for the second and fourth Respondents to regularize their briefs. But it is his contention that their original brief was filed out of time before then, and failure to file within time and without regularizing same, is fatal, citing PDP V. INEC (2014) 17 NWLR (Pt. 1437) 525

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at 553 and CPC V. INEC (2011) 18 NWLR (Pt.1279) 493.

As it happened, I was on the Panel that sat on that 11/1/2017, and what the Appellant failed to mention in his Reply Brief is that a Brief for second and fourth Respondents was filed on 14/11/2016. But a different counsel filed another Brief for them on 22/12/2016, and on that day, two different counsel announced appearance for the same second and fourth Respondents. After some clarifications, this Court directed that they file separate briefs for the Respondents.

The issue now is whether the separate Briefs of Arguments filed by the second and fourth Respondents on 12/1/2017 and 16/1/2017 respectively, is competent. In my view, there is nothing to this issue.

To start with, the issue of representation by counsel is a matter of counsel-client relationship, which this Court cannot get involved in – see the case of Chief M.K.O Abiola V. F R N (1996) LPELR-40 (SC), wherein this Court, per Belgore, JSC (as he then was) said as follows-

The best person to decide who represents him … is the Appellant, and that is his constitutional right. Time honoured practice is for this issue of

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representation to be decided by counsel after consulting the Appellant, or the Appellant writing to intimate his choice of counselor It is always a privilege, the matter of counsel-client relationship, and I do not believe it is right to involve the Court in this.

What is more, where there is no averment that the authority of the counsel to conduct the case on a party’s behalf has been withdrawn, it is accepted that counsel had general or apparent authority to so do – see Afegbai v. A-G., Edo State (2001) 14 NWLR (Pt. 733) 425 SC.

In this case, Mrs. H. O. Ben Umar, who filed the first joint brief, forwarded correspondence from the fourth Respondent (to her); (from) the National Legal Adviser of the second Respondent to her; and from the fourth Respondent to the said National Legal Adviser, which indicate that she had been briefed by the fourth Respondent, the Chairman of APC, Kano, to represent him and the said APC itself.

But the National Legal Adviser’s letter refuting her representation for second Respondent is dated 2/12/2016 after she had filed the brief.

However, the said series of letters were merely forwarded and received

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by the Court on 22/12/2016: unattached to a Court process, which means they are not properly before this Court, and this Court cannot act or rely on anything said in the letters regarding this issue.

In other words, there is nothing before this Court challenging her authority to file the first joint Brief of Argument on 14/11/2016, which was filed within the time stipulated by the Rules of this Court.

However, both counsel resolved amongst themselves in open Court that they would each appear for the said Respondents separately.

Thus, there was a valid Brief in place before both counsel filed the aforesaid separate briefs on 12/1/2017 and 16/1/2017 respectively. The contention that the said two Briefs are incompetent lacks merit.

Even so, the fourth Respondents Brief will be discountenanced because he is asking this Court to allow the Appeal, which is not what is expected from a Respondent to an appeal. It is a well-established principle of law that the primary duty of a Respondent in an appeal is to support the judgment/decision of a lower Court appealed against.

Where a Respondent is not comfortable with a finding, not the

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entire Judgment, which he considers fundamental, he can challenge same by filing a cross-appeal – Cameroon Airlines V. Otutuizu (2011) 4 NWLR (Pt. 1238) 512, Obi V. INEC (2007) 11 NWLR (Pt. 1046) 565. Where the Respondent supports the judgment, but wants it affirmed on grounds other than those relied upon by the Court, he must then file a Respondent’s Notice – Kayili V. Yilbruk (2015) LPELR-24323(SC).

Without a cross-appeal or Respondent’s Notice, he will not be allowed to attack the judgment, and the effect of violating this rule is that arguments in his brief in support of the Appellant will be ignored – see Obi V. INEC (supra). In this case, the fourth Respondent urged this Court to allow the Appeal in Appellant’s favour, which is wrong, and the end result is that the arguments in his brief will be ignored.

The third Respondent filed a Brief, but only quoted the decision of this Court in A-G, Fed. V. Abubakar (2007) 10 NWLR (Pt. 1041) 1, and added that in the light of the admonitions therein by this Court, “[it] will abide by whatever decision this Court renders in the Appeal. It is safe to say that it has nothing to contribute to the

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determination of this Appeal, but in my view, it did not need to file a Brief to say so.

As it is, this Appeal will be determined on the three briefs left. The second Respondent formulated the following three Issues –

1. Whether the lower Court was right when it held that the Originating Summons was competent and upheld the decision of the trial Court which dismissed the Appellant’s Preliminary Objection.
2. Whether the lower Court was right when it held that the trial Court rightly assumed jurisdiction in this Suit.
3. Whether the lower Court considered the Further and Better Counter Affidavit of 2nd and 4th Respondents and rightly upheld the decision of trial Court that granted all reliefs sought in the Originating Summons.

The Appellant and first Respondent’s Issues 1-3 which they argued together in their respective briefs, and second Respondent’s Issue 1, are on the objection raised as to validity of the Originating Summons, and the Appellant addressed this Issue under the following heads

i) issuance of the Originating summons;

ii) Endorsement of the Originating Summons issued for service outside jurisdiction; and

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iii) Service of the Originating Summons outside jurisdiction of the Court.

The first head is hinged on the point made by the Court below that-

It is obvious from the cases of Touton SA V. Grimaldi Compagnia Di Narga Zioni SPA (2011) 4 NWLR (Pt. 1236) 1 and Agip (Nig.) Ltd v. Agip Petroli International (sic) NWLR (Pt. 1187) 348 relied on by counsel for the submission that counsel to the Appellant confused provisions of the Federal High Court (Civil Procedure) Rules 2009. The Appellant confused the provisions of the Federal High Court (Civil Procedure) Rules 2000 with provisions of the Federal High Court (Civil Procedure) Rule 2009. Order 6 Rules 12(1) of the 2000 Rules stated very clearly that No writ which, or notice of which, is to be served out of jurisdiction shall issue without the leave of Court. This Court is not aware of any such corresponding provision in the 2009 Rules and none was referred to by Counsel to the Appellant. Order 6 Rules 13 to 17 of the (2009) Rules talks about leave to serve originating process out of jurisdiction and not leave to issue. The proceedings in the lower Court in this matter were governed by

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the provisions of the (2009) Rules and there was thus no obligation on the first Respondent to obtain leave to issue the Originating Summons it took out.

The said Federal High Court (Civil Procedure) Rules coming up here will hereinafter be referred to as the 2000 Rules and the 2009 Rules.

The Appellant argued that a comparison of Order 6 Rules 12(1) of the 2000 Rules quoted by the Court below with Order 6 Rules 13 to 17 of the 2009 Rules, shows that though not in the exact language but their meanings, intendments and principles remains the same; that it makes provisions for leave to serve outside jurisdiction; and that the question now is whether there is any guidance therein for leave to issue originating summons for service outside jurisdiction.

He contends that it is a rule of practice generated by Section 9 of the Federal High Court Act and Order 56 Rule 8 of the 2009 Rules to the effect that the Court “shall adopt such procedure as it deems fit to do substantial justice between the parties concerned”. He also referred to Order 6 Rule 14 of the 2009 Rules, and submitted that in Owners of MV “Arabella” v. N.A.I.C. (2008) 11 NWLR (Pt.1097) 182, this

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Court did not rely or use any specific provisions of the said rules; and that leave to issue and serve are both coterminous, mandatory and condition precedent to the exercise of the Court’s jurisdiction.

The first Respondent argued that it is wrong to assert that the said provisions have the same meaning; that to say that will amount to adding a phrase, which was repealed by the Rules, and will equally amount to a Court becoming a legislative body by making addition to an unambiguous provision of the law; and that the Courts have no power to impose on a litigant a duty that is not recognized by law.

Furthermore, that as the rules did not provide for leave to issue, any attempt by the Appellant to make leave to issue as a mandatory requirement, will amount to imposing an obligation on him that the Rules of Court and other enabling Statutes never imposed on him – Ault Wibong (Nig.) Ltd. V. Nibel Ind. (2010) 5-7 MJSC (Pt. 111) 155

He also argued that since the 2009 Rules only provided for leave to serve out of jurisdiction, it presupposes that all the other things not specifically mentioned, such as leave to issue, were excluded; encapsulated in

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the Latin Maxim, expressio unius est exclusio alterius – what is stated in Statute expressly excluded that which is not stated in the Statute – Osahon V. F.R.N. (2003) 16 NWLR (Pt 845) 89.

On the Appellants contention that it is rules of practice that made it mandatory to seek leave before issuance of originating processes, and that this Court did not use any specific provision of those Rules in Owners of MV “Arabella” V. N.A.I.C. (supra), he argued that this is incorrect because that case was decided on the provision of Order 10 Rule 14 of the Federal High Court (Civil Procedure) Rules 1976.

The second Respondent also submitted that the Court below was right, and referred to its finding at page 554-555, as follows-

This Court has read the provisions of Order 6 Rules 13 of the (2009 Rules) and Sections 97 and 99 of the Sheriffs and Civil Process Act and must say that nowhere therein was it stipulated that an originating process for service outside jurisdiction cannot be issued out of the Federal High Court without the leave of Court.

It submitted that the position of the Court below represents the true and correct interpretation of the

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provisions of Order 6 Rules 13 of the 2009 Rules, which simply provided that leave must be obtained to serve a writ outside the Court’s jurisdiction; and that even the Appellant in his entire submission before this Court could not debunk that finding but heaped his objection on a duty purportedly imposed on the first Respondent by the law, which the law never provided.

What is this complaint all about The Appellant is right that the said Order 6 Rule 12 (1) of the 2000 Rules provides as follows –

No writ which, or notice of which, is to be served out of jurisdiction shall be served without the leave of Court.

However, his contention is that the first Respondent required leave to issue the Originating Summons for service outside jurisdiction.

He concedes that Order 6 Rules 13-17 of the 2009 Rules makes no mention of leave to issue but contends that it is a rule of practice in conjunction with Order 6 Rule 14 (1) of the 2009 Rules that says –

Every application for leave to serve a writ of notice on a defendant out of the jurisdiction shall be supported by affidavit or other evidence stating that in the belief of the deponent the

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plaintiff has a good cause of action and showing in what place or country the defendant is or probably may be found, and the grounds upon which application is made.

He relied on the decision of this Court in Owners of MV “Arabella” v. NAIC (supra) which he says gives judicial support and credence to this position and rules of practice that leave to issue must be sought.

As the first Respondent submitted, contrary to his assertion, that case was decided based on Order 10 Rule 14 of the 1976 Rules.

Thus, the Respondents are right; the Appellant has not come up with convincing arguments to counter the finding of the Court below that the provisions of the 2009 Rules, impose no obligation on the first Respondent to obtain “leave to issue” the Originating Summons.

Rules of Court are not static; they change as the society evolves and legal issues become more and more complex or sophisticated. The said Federal High Court {Civil Procedure} Rules of 1976 and 2000, may have stipulated that no writ of service out of jurisdiction can be issued except by leave of Court, but the 2009 Rules did not say so.

The Appellant cannot bring in, what he

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called a rule of practice, to hold sway or supersede provisions of the 2009 Rules. No doubt, the Federal High Court (Civil Procedure) Rules, has undergone several modifications geared towards improving access to justice since 1976, and to say that a particular rule must be carried on and implemented under Rules made decades later, amounts to taking the clock back. Let me just say that this sub-issue is resolved against the Appellant.

The next head relates to the endorsement of the said process. On this score, the Court below referred to the provisions of Sections 97 and 99 of the Sheriffs and Civil Process Act, and held as follows –

[They] were for the benefit of the second and third Respondents listed to be served outside jurisdiction. It was not in contest … that the Originating Summons was eventually served on the second and third Respondents in Kano State within jurisdiction, and not outside jurisdiction. Thus, the dereliction on the part of the first Respondent was of no importance since they are in respect of service carried out outside jurisdiction.

He further held as follows on the effect of the said derelictions –

At a point in

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time there was so much confusion on the issue and this was brought about by the decisions in Skenconsult (Nig) Ltd. V. Ukey (1981) 1 SC 6, Ezamo V. Oyakhire (1985) 1 NWLR (Pt. 2) 195, Nwabueze V. Okoye (1988) 4 NWLR (Pt. 91) 664, Adegoke Motors Ltd. V. Adesanya (1989) 3 NWLR (PT. 109) 250 and NEPA V Onah (1997) 1 NWLR (Pt. 484) 680.

However, in Odua Investment Co. Ltd V Talabi (1997) 10 NWLR (Pt. 523) 1, the Supreme Court constituted a full panel of seven Justices to consider the issue and to reconcile its conflicting decisions on the issue and the decisions of the Court, by a majority of six to one, was read by Ogundare, JSC, [who] streamlined the views of the Supreme Court on the issue In other words, the position taken by the full panel of the Supreme Court was that non-compliance with the provisions of the Federal High Court Rules and the Sheriffs and Civil Processes Act is an irregularity, which only renders the writ voidable, not void, and that such a writ will be voided at the instance of a Defendant who acts timeously and before further steps are taken in the matter. It must be conceded that in Owners of the MV Arabella

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N.A.I.C. (2008) 11 NWLR (Pt. 1097) 182 the Supreme Court speaking on the effect of non-compliance with Section 97 of the Sheriffs and Civil Process Act said that But the decision in Owners of the MV Arabella” v. NAIC was delivered by a panel of five Justices of the Supreme Court, and it is jurisprudentially correct that it cannot supersede, override or take precedence over a decision delivered by a panel of seven Justices of the Supreme Court. The decision in Odu’a Inv. Co. Ltd. V. Talabi thus still remains the law until it is set aside or overridden by a decision of a panel of seven Justices or the Supreme Court.The Appellant submitted the position taken by the Court below is not correct because the decision of this Court in Odu’a V. Talabi (supra), cannot be a decision of the full Court since one of the seven Justices, Kutigi, JSC, (as he then was) dissented; that the ratio is basically on the provisions of Section 99 of the Sheriff and Civil Process Act; and that the Odua’s Case is also distinguishable from the present case.He argued that good service cannot validate an invalid process, and bad service cannot invalidate a

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valid process; that the prayer as granted is not for service on them in Kano but for substituted service on them through the said Barrister Haruna Falali, unlike Prayer 2 that said service on 3rd defendant “through its Kano office”, therefore, non-endorsement is of importance and fatal to the entire process.

Furthermore, that he raised the point about non-endorsement of either one out of the Originating Summons issued for service within and outside jurisdiction with the word “concurrent” in line with Order 3 Rules 19 and 20 of the 2009 Rules, however, the Court below did not consider it at all, for no reason or for no just cause; and that the failure to consider same is a breach of fair hearing.

The first Respondent, however, submitted that the Appellant’s argument is purely academic since he did not contest the fact that the service was carried out within the jurisdiction of the trial Court.

Furthermore, that Section 97 of the Sheriff and Civil Process Act is meant for the benefit of defendants residing outside jurisdiction, who are not to be served outside jurisdiction without the requisite endorsement; but where a party is served with

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jurisdiction or even where a party is served outside the jurisdiction and waived his right to challenge the procedure, he will not later be heard to complain – Odu’a Investment Ltd. V. Talabi (supra), and that second and third Respondents, on whose behalf, the Appellant is raising this issue, waived it and did not complain of non-compliance at the trial Court.

He added that since the said Sections 97 and 99 of the Sheriffs and Civil Process Act were promulgated for the benefit of defendants residing outside jurisdiction, it will amount to promoting champerty if the Appellant is allowed to raise an issue that did not concern him.

As to the Appellant’s contention that the said service is wrong, he argued that he failed to fault the said finding of the Court below, and none of them challenged that Order; that Orders of Court are deemed valid until set aside by the Court or quashed on appeal and it is not within the province of a litigant to determine the validity of a Court Order – Babatunde V. Olatunde (2000) 2 NWLR (Pt. 646) 568.

The second Respondent urged this Court to restate the law that “purpose of service is to put the parties on notice of

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the subsistence of the pendency of a legal action against them and afford them opportunities to raise a defence against the legal action” because –

Any other expectation of service beyond this simple point is technical justice and repugnant to the growth of our jurisdiction in this country.

It further argued that the issue is being contended up to this Court by a party, who has no business with the service effected; and that

The Appellant is merely contending that the Originating process was not marked for service outside jurisdiction even though there is an Order of Court directing service within jurisdiction and that service had in fact been carried out with parties taking further steps in the proceedings. With respect, the Supreme Court should seriously discourage contentions of this nature. Law is the life-wire of every society. It must be organic and should grow as society grows. Parties should be eager to have their disputes determined on substance and not form. Practitioners and Honourable Ministers of Law in the Temple of Justice must be seen to encourage this as well. Cases and clients will come and go but the law and the Court will remain and we have a bounden duty to

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preserve the integrity of the Courts.

It also cited Order 6 Rule 31 of the 2009 Rules which provides that “in this Order ‘out of jurisdiction’ means out of the Republic of Nigeria”, and argued that since the said Rule provides that any State in Nigeria is within jurisdiction, and Kano State is a State within the Federal Republic of Nigeria, the issue of leave to serve or need to mark for service outside jurisdiction, does not apply in this case.

As attractive as that line of argument is, the said provision was not considered at the lower Courts, and this Court cannot go there.

This is because considering its argument will change the ure of the case that went through the grill at the lower Courts. Besides, an Appellant’s right of appeal is circumscribed within the parameters of a decision appealed against. Thus, it is the opinion appealed against that is affirmed or reversed, and this cannot undertake decisions, which may be of utmost importance, without hearing what the Court below had to say about it -see Uor V. Loko (1988) 2 NWLR (Pt. 77) 430 SC, Nuwon v. Adeoti (1990) 2 NWLR (Pt. 131) 271 SC.

In this case, the issue turns on the

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validity of the said process, and the relevant provisions of Sheriffs and Civil Process Act are-

97. Every writ of summons for service – – out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the following effect … “This summons (as the case may be) is to be served out of the — State (as the case may be)” and in the – – – State (as the case may be).
98. A writ of summons for service out of the State or the Capital Territory in which it was issued may be issued as a concurrent writ with one within such State or the Capital Territory and shall in that case be marked as concurrent.
99. The period specified in a writ of summons for service – – as the period within which a defendant is required to answer before the Court to the writ shall not be less than thirty days after service of the writ has been effected or if a longer period is prescribed by the Rules of the Court within which the writ is issued, not less than that longer period.

Order 3 Rules 19 and 20 of the 2009 Rules,

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also provides as follows –

19. A Plaintiff may at the issuance of an originating process or at any time during its life span, cause to be issued one or more concurrent originating processes each to bear the same date as the initial process. Marked CONCURRENT and have stated on it the date of issue.
20. An originating process for service within jurisdiction may be issued and marked as a concurrent originating process with one for service out of jurisdiction and an originating process out of jurisdiction may be issued and marked as a concurrent originating process with one for service within jurisdiction.

In other words, these provisions in the said Act and Rules envisage a situation where one and the same originating process is to be served within the jurisdiction and out of the jurisdiction where it was issued. Both processes are to be marked “Concurrent and dated same day, at the time the process is issued or at any time during its life span.

In this case, the Originating Summons filed by first Respondent on 5/2/2015 has no such markings but has addresses for service on second and third Respondent at the Federal Capital Territory, Abuja.

On that same day,

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5/2/2015 before service had been effected, first Respondent filed a Motion Ex-Parte praying the trial Court for an Order of Court granting him leave “to issue and serve” the Appellant and second, third and fourth Respondents by “substituted means”.

The Application was granted as prayed the next day, 6/2/2015, and the Appellant, second and fourth Respondents were all served within jurisdiction through “Legal Adviser of the Kano State Branch of [APC] in the person of Barrister Haruna Falali”, and third Respondent [INEC] was also served within jurisdiction through its “Kano Office.

The Appellant filed a Memorandum of Conditional Appearance, but followed it up with a Counter-Affidavit in opposition to the first Respondent’s Affidavit filed in support of the Originating Summons, wherein he joined issues with the first Respondent on the facts.

The Second and fourth Respondents filed their Memorandum of Appearance unconditionally, and they also filed Counter Affidavits and Further and Better Counter-Affidavits in reaction to the process.

Third Respondent filed a Conditional Memorandum of Appearance, but it also filed a Counter Affidavit to

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the Affidavit in support of the Originating Summons. In other words, the Appellant and the second, third and fourth Respondents joined issues with the first Respondent as regards the merit or otherwise of the Originating Summons itself.

It is after this that the Appellant filed the Objection in question. The trial Court overruled the Objection because, in its view, the said Order of substituted service, which it issued on 6/2/2015, before the Originating Summons could be served outside jurisdiction meant that the service of same was no longer necessary outside jurisdiction and so, the service was properly done in Kano State within jurisdiction.

Obviously, the Order for substituted service is at the center of everything, and to resolve this issue, its status must be determined.

This brings to the fore the Appellant’s last head of complaint- service of the Originating Summons outside jurisdiction of the Court.

The Court below held as follows on the validity of the said Order-

The Appellant also canvassed the issue of the invalidity of the Order of substituted service made by the lower Court on 6/2/2015 and consequent on which the

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originating Summons was served on the Appellant through the legal Adviser of the second Respondent. Counsel has argued copiously in his brief of argument that the Order was wrongly made within the scope of Order 6 Rule 5 of the Federal High Court Rule. This Court has read through the records of appeal in this matter and did not see any application by the Appellant to set aside the Order of substituted service or a notice of appeal against the said Order. The issue of validity of the Order of substituted service was also not raised by the Appellant in any of the processes he filed and neither was it canvassed before the Trial Court. All that the Appellant complained about was that he was not served personally with the originating processes and not that the order of substituted service was invalid.

The Court below further observed as follows at page 561 –

It was not the case of the Appellant that he did not receive the processes served by the means of substituted service. It was not his case that the mode of service shortchanged his ability to respond to the processes served on him. The Appellant in fact filed his response to the processes. The complaint of

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the Appellant on the issue of substituted service is thus phantom and esoteric and not real. It will not be countenanced by this Court.

On this head of complaint, the Appellant submitted that the eventual service in Kano is irrelevant; and that the said Order of substituted service cannot be twisted as an amendment of the address of service OR that endorsement of the address for service outside jurisdiction was for fun, which brings to bear the importance of an attempt at personal service before making any order for substituted service.

He further argued that the Parties cannot waive the fatal non-compliance with the statutory mandatory provision of Section 97 of the Sheriffs and Civil Process Act and that any party can raise same as it is not waivable; that he promptly took up the challenge because his complaint is not only about service as in Odu’a v. Talabi (supra), but also a fundamental substantive jurisdiction issue (relating to issuance) which can be raised by any party or by the Court suo motu, as Parties cannot by consent or acquiescence confer jurisdiction on a Court – Odu’a v. Talabi (supra), Owners of MV “Arabella” v. NAIC (supra), Elugbe

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Omokhafe (2004) 11-12 SC 60, Mobil Producing Nig. Unlimited & Anor v. Monokpo & Anor (2003) 12 SC (Pt.11) 50.Furthermore, that he is entitled to raise the issue of jurisdiction because he is not only a party in the case, who cannot close his eyes to the invalidity of the Originating Summons, but the objection to the summons will also enure to his benefits, so the trial Court was right, and the Court below was wrong to have held that Parties can waive the mandatory statutory and substantive issue of jurisdiction.On the question of not raising the issue of substituted service at the trial Court, and not seeking leave to raise it at the Court below, he admitted that the “issue was not clearly raised” and attributed it “to error in the typing”. He, however, submitted that it was raised in the objection, argued upon and considered (though not determined) by the trial Court, and that Ground (a) in the Notice of Preliminary Objection was concluded with and service of the process rules.

He further submitted that the trial Court failed, refused and or neglected to determine the issue, and the Court below jettisoned the

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consideration of the effect of the failure on an improper ground; and judicial pronouncement on the issue of substituted service/personal service was appropriately set out in M. Khatoun v. Hans Mehr (Nig.) & Ors (1961) NWLR 27-28, Kida V. Ogunmola (2006) 13 NWLR (Pt. 997) 377 and Abacha V. Kurastic Nig. Ltd. (2014) LPELR-22703 at 36.

He also contends that the failure of the trial Court to consider the issue amounts to breach of his right to fair hearing; and that the Court below ought to have also considered and determined same, since it has a legal duty to consider and decide all issues submitted by Parties to an appeal for consideration, citing Adah V. NYSC (2004) ALL FWLR (Pt.233) 1850, Ojoh v. Kamalu (2005) 18 NWLR (Pt.958) 523/556 and FMH v. CSA Ltd. (2009) 9 NWLR (Pt. 1145) 193/220-1.

He added that by dint of Section 22 of the Supreme Court Act and Yusuf v. Obasanjo (2003) 16 NWLR (Pt. 847) 554, Odedo v. PDP (2015) 6 SC (sic), this Court can step in, assume jurisdiction over the issue and make such or “any order necessary for determining the real question in controversy in the appeal” -Nwadike V. Ibekwe (1987) 11-12 SCNJ 72, Inakoju V.

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Adeleke (2007) 4 NWLR (Pt. 1025) 423, Amaechi V. INEC (2008) 5 NWLR (Pt. 1080) (sic). Furthermore that –

The real question is, was (he) and the 2nd to 4th Respondents properly served No. There was no service or personal service. No attempt at service first. See Kida V. Ogunmola (supra). Consequently, the purported service on (him) as well as 2nd to 4th Respondents ought to be set aside.

The first Respondent, relying on the decision of this Court in Chime V. Chime (2001) FWLR (Pt. 39) 1457, insists that the Appellant has no locus whatsoever to challenge the service of the said process on the second and third Respondents. He argued that the said Respondents did not file any process at the trial Court to challenge its jurisdiction, and did not file any notice or ground of appeal against its decision; and that the Appellant cannot raise the issue of non-compliance with Section 97 and 99 of the Sheriff and Civil Process Act because they are made for the benefit of persons residing outside jurisdiction.

Furthermore, that he failed to distinguish between jurisdiction of Court (i.e. subject matter jurisdiction; qualification of its members) and the

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issues pertaining to procedural jurisdiction – Hassan V. Aliyu (2010) 7 MJSC 1, Ketu & anor. V. Onikoro & Ors. (1984) 10 SC 265; that the case of Elugbe V. Omokhafe (supra) which he cited, is not applicable as it touches on the substantive jurisdiction of the Court and that even if that Issue was raised in his own Affidavit, as he said, it will not be considered as valid objection for the following reasons-

(1) Objections and legal arguments are not raised in an affidavit – Section 115 (2) of the Evidence Act 2011 and Abiodun V. A-G, Federation (2007) 15 NWLR (Pt. 1057) 359 cited.

(2) The lower Courts were bound by the prayers as contained on the face of the Preliminary Objection – Sentinel Ass. Co. Ltd. V. SGBN (1992) 2 NWLR (Pt. 224) PG 495 @ 503.

Furthermore, that M. Khatoun v. Hans Mehr (Nig.) & Ors (supra) cited by him was not decided based on the Federal High Court Rules, 2009.

He submitted that Order 6 Rule 5 (a) and (b) of the 2009 Rules, provides how substituted service of Court’s processes are affected, and the Appellant did not say anything on it; that his entire argument is nothing but academic exercise; and that the cases

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he cited do not apply to the facts and circumstances of this case, and should not be applied across the board, citing Emeka V. Okadigbo (2012) 18 NWLR (Pt. 1331) (sic), wherein Rhodes-Vivour,. JSC, stated as follows –

Facts have no views – – the rules of stare decisis don’t allow Courts to apply the ratio of a case across the board with no regard to the facts of the case before them.

On its part, the Second Respondent submitted that the service can, at best, be said to be irregular, the process being served on a branch of said Respondents and not the headquarters, which can be waived, as it was done in this case – Compagnie Generale De Geophysique (NILT) CGG Nig. Ltd. Vs. Aminu (2015) LPELR-24463 (SC) cited.

Where does one start The arguments are convoluted indeed, but a good starting point is Order 6 Rule 5 (a) to (e) of the 2009 Rules, dealing with substituted service, and Order 6 Rule 5 (a) and (b) reads,

Where it appears to the Court (either after or without an attempt at personal service) that for any reason personal service cannot be conveniently effected, the Court may order that service be effected either –

(a) By delivery of

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the document to an adult person at the usual or last known place of abode or business of the person to be served; or

(b) By delivery of the document to some person being an agent of the Person to be served, or to some other person, on it being proved that there is reasonable probability that the document would in the ordinary course, through that agent or other person, come to the knowledge of the person to be served.

There it is – the trial Court may order substituted service either after “or without an attempt at personal service”. The word “may” makes room for the exercise of discretion. lt is an enabling and permissive word and in that sense, it imposes or gives a discretionary power – see Mokelu V. Fed. Comm., Works and Housing (1976) All NLR 224.

Judicial discretion is described as a sacred power that inheres to a judge, and which he should employ judicially and judiciously – Achi V. Ebenighe & Ors (2013) LPELR-21884 (CA). Since two cases are not always the same, this Court does not lay down rules to fetter the exercise of its discretion or that of the lower Courts. Thus, a Court cannot be bound by a previous decision to exercise its

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discretion in a regimented way, because that would be putting an end to discretion – Odusote V. Odusote (1971) NSCC (Vol. 7) 231, Ajuwa & Anor v. Shell Petroleum Dev. co. Nig, Ltd. (2011) 18 NWLR (Pt.1279) 797 SC.

What is clear in this case is that the trial Court had an option to grant the first Respondent’s prayer for substituted service before any attempt was made to effect personal service on the Appellant or not. It opted to grant the prayer, and the effect thereof is that the said Originating Summons, which had not been marked as “concurrent, did not require to be so marked because, by the said Order issued, the process was to be served within jurisdiction and it was so served.

To have such Order reversed, the Appellant must show that the trial Court exercised its discretion wrongly or did not give due weight to relevant considerations, and this resulted in injustice done to him.

Did he make an issue of the order at the trial Court or appeal against the said Order to the Court below – that is now the question He conceded that “the Issue was not clearly raised” but insists that it ”was raised in the objection, argued upon

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and considered” because –

– Ground (a) in the Notice of Preliminary Objection concluded with “and service of the process rule;

– Paragraph 4 (c) and (d) of the Affidavit in support of the Notice of Preliminary Objection raised the issue of service;

– At the hearing of the objection, the first Respondent’s counsel objected that the objection was “not on issue of personal service”, and his own counsel argument before and after that objection shows that the Issue of personal service was raised and argued; and that

– The sole issue raised by the trial Court while considering the objection shows that the issue of personal service was obviously included i.e.

“Whether the Plaintiff’s non-compliance with Section 97 of the Sheriffs and Civil Process Act had robbed this Hon. Court of its jurisdiction to adjudicate on its claims and non-service of the originating process personally on the 2nd Defendant/Applicant, and non-service [at] Head office of the 1st and 3rd Defendants as they are both residing at Abuja outside jurisdiction of this Court”.

Obviously, the Appellant is grasping at straws and flimsy ones at that.

To start with,

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Ground (a) in the Notice of Preliminary Objection merely states that the Originating Summons was neither endorsed nor marked as required by the Sheriffs and Civil Process Act and the “Enforcement of Judgment and Service of the Process Rules”, which cannot by any stretch of imagination be equated with challenging the Order of substituted service of the process that was served on him.

And he only averred in the said Paragraphs 4 (c) and (d) that he was never served with the process personally; and that the processes “served on the 1st and 3rd Defendants were not properly served”.

Again, these averments in the Affidavit in support of the said Notice of Preliminary Objection say nothing about the said Order for substituted service that resulted in the service of the said process.

He also relies on the arguments canvassed by counsel at the hearing of the Objection but it is settled that arguments of counsel, which are designed to assist the Court, are not binding on the Court – Oruboko V. Oruene (1996) 7 NWLR (Pt. 462) 555. lf the argument is not binding on the Court, how is it expected to step in and replace a clear-cut objection challenging a valid

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Order made by a trial Court

Obviously, the Court below was right that all that the Appellant complained about was that he was not served personally with the said process; not that the Order of substituted service was invalid.

That aside, the Appellant also contends that he had every right to challenge the validity of the Originating Summons because non-compliance with that provision of the Sheriffs and Civil Process Act is not waivable as it touches on the substantive jurisdiction of a Court, which brings to question its distinction with procedural jurisdiction.

A litigant may submit to a procedural jurisdiction of the Court, but no litigant can confer jurisdiction on the Court where a Statute or the Constitution says that the Court does not have jurisdiction. Thus, while substantive jurisdiction of the Court cannot be waived, a party can waive a matter relating to procedural jurisdiction of the Court, and this is usually determined from reliefs sought in the process – Mobil Prod. (Nig) UnLtd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1 SC.

In other words, irregularity in the exercise of jurisdiction should not be confused with a total lack of

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jurisdiction – see Mobil Prod. (Nig.) UnLtd. V. LASEPA (supra) wherein Ayoola, JSC, explained that-

Notwithstanding that, sometimes, the distinction between substance and procedure is blurred, it is generally accepted that matters (including facts), which define the rights and obligations of the parties in controversy, are matters of substance defined by substantive law, whereas matters, which are mere vehicles, which assist the Court … in going into matters in controversy or litigated before it, are matters of procedure regulated by procedural law. Facts, which constitute the cause of action, are matters of substance and should be pleaded, whereas facts, which relate to how a party is to invoke the jurisdiction of the Court for a remedy pursuant to his cause of action, is a matter of procedure outside the realms of pleadings. This distinction was stated thus in Halsburys law of England, Vol. 8(1), 4th Edition, para. 1066:

Generally speaking, it may be said that substantive rules give or define the right, which it is sought to enforce, and procedural rules govern the mode or machinery by which the right is enforced.

In this case,

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there is no question that contrary to his vehement stand, the Appellant’s Objection was basically a challenge to the procedural jurisdiction of the Court rather than a challenge to its substantive constitutional or statutory jurisdiction to entertain the said Suit see Adegoke Motors Ltd. V. Adesanya (1989) 3 NWLR (Pt. 109) 250 SC.

His Objection was a complaint against the competence of the trial Court to entertain the Suit because the Originating Summons was not endorsed or marked as required by the said Act and Rules, which touches on the procedural rules that got Parties to the Court, and nothing whatsoever on the facts that led to the cause of action or substance of the Suit filed by the first Respondent. Any defect amounted to a mere irregularity that can be waived by the Parties.

Was the said irregularity in this case waived This Court nailed this issue to the ground in Adegoke Motors Ltd. V. Adesanya (supra), wherein it stated categorically that in similar circumstances like this, the filing of a memorandum of appearance, as was done in this case, constitutes a waiver of any irregularity, and constitutes a submission to the

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jurisdiction of the Court. In that case, Oputa, JSC, observed –

A writ of summons (valid or invalid is immaterial at this stage) was served on the Defendants. The Defendants could, if they wanted to either:-

(i) Enter an appearance on protest; or

(ii) Enter a conditional appearance and;

(iii) Then file a Motion asking the Court seised of the matter … to set aside the purported Writ and the purported service on the ground of essential invalidity of both Writ and Service.

The Defendants did not do this. Rather they entered an appearance through their Solicitor… This implied that they wanted and intended to contest the case of the Plaintiffs.

In this case, the Appellant entered a conditional appearance and also filed a Counter-Affidavit, which means he waived the irregularity that he complained of, and had submitted to the jurisdiction of the Court.

The last question is whether he had any business objecting in the first place His address for service on the process was in Kano, and he was served in Kano, within jurisdiction. The second and third Respondents had their addresses for service on the process at Abuja, outside

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jurisdiction, and by the said Order of substituted service, they were both eventually served in Kano State, within jurisdiction.

The second and third Respondents did not object or complain; they submitted to the jurisdiction of the trial Court, and kept quiet.

It is the Appellant, who was not affected by the service within jurisdiction instead of outside jurisdiction, as specified in the process, that took on the challenge and fought the battle from the trial Court to the Court below, and finally to this Court. Was he right to do so

I will just say that it was none of his business, and my response is supported by decisions of this Court – see Chime V. Chime (supra), cited by first Respondent, wherein this Court, per Wali, JSC, stated –

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It is not in dispute that neither 1st Respondent nor the 3rd Respondent complained against non-service of the Court processes… or any other order made. It does not, therefore, lie in the mouth of the Appellants to complain on their behalf. It is abundantly clear that neither the 1st nor 3rd Respondents complained against non-service of any Court process on him. The Court of Appeal was perfectly right when it stated-

For a party to a suit to apply for the proceedings to be nullified by reason of failure of service, where service is a requirement, it must sufficiently be established that he or she has not been served in respect of the proceedings and that the order made therein affects him. It is not –open to every party to the proceedings to make such an officious complaint. If such complaint is sustainable, it will yield startling results. Thus, an aggrieved Plaintiff– would be enabled to appeal against a judgment on the technical ground that a party to the proceedings has not been served same process.

In this case, the Appellant is not a Knight in shining armor, and the second and third Respondents did not need him to fight their battles. The irony is that the second Respondent that he was fighting for has filed briefs supporting decisions of the two lower Courts against him.

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In the circumstances, it will be a disservice to the justice system to allow the Appellant get away with what did not concern him at all, and it goes without saying that this issue is resolved against him.

The next main issue is whether the trial Court had jurisdiction over this matter. On this score, the Court below held as follows –

Reading through the Originating Summons of the first Respondent, it is clear that the gravamen of the question submitted for determination of the lower Court was an inquiry into the propriety or validity of the action of the third Respondent, INEC, in publicizing, recognizing and including the name of the Appellant and/or dealing with the Appellant as the candidate of the second Respondent (APC) to contest the election into Kano State House of Assembly representing Gabasawa constituency of Kano State scheduled to take place on 28/2/2015 when he, first Respondent, was the winner of the

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primary election conducted by the second Respondent. In Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56 the Supreme Court stated that the publication of the list of candidates to contest an election by the electoral body was an administrative action. Thus, the question was a challenge to an administrative action of an agency of the Federal Government. It was the case of the First Respondent in the affidavit in support of the Originating Summons – – that he scored the majority of the lawful votes cast at the primary election held by second Respondent on 2/12/2014 in Gabasawa LGA – – for the purpose of presenting a candidate of the party for election – – to represent Gabasawa Constituency – – but rather than submit his name to the third Respondent as the candidate of second Respondent (APC) to contest the election – – scheduled to take place on 28/2/2015, second and fourth Respondent substituted his name with the name of the appellant and consequent on which the third Respondent published the name of the Appellant as the candidate for the election. The first relief sought by the first Respondent was a mandatory order against the third Respondent, the independent

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National Electoral commission, to include his name in the list of candidates while the third relief was for an injunctive order against the second, third and fourth Respondents restraining them from recognizing, publishing or dealing with the Appellant as a candidate representing Gabasawa Constituency of Kano State in the scheduled election. The third Respondent is an agency of the Federal Government and the Supreme Court held in similar circumstances in the case of Gbileve v Addingi (2014) 16 NWLR (Pt. 1433) 394 that such a suit was properly instituted in the Federal High Court. This Court is bound by this decision of the Supreme Court and it hereby resolves that the lower Court had jurisdiction to entertain the action of the first Respondent.

It is settled that is the Plaintiff’s claims that determine jurisdiction; that is to say, it is the claim before the Court that has to be looked at to ascertain whether it comes within the jurisdiction conferred on it – see Elelu-Habeeb V. A.G. Fed. (2012) 13 NWLR (Pt. 1318) 423 SC.

In this case, the first Respondent claimed the following three reliefs –

1. An order of this Hon. Court directing the

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3rd Defendant to publicize, recognize and include the name of the Plaintiff as the 1st Defendant’s rightful candidate for Gabasawa Constituency of Kano State House of Assembly in the general election scheduled to take place on 28/2/2015.

2. A declaration of Court that the Plaintiff is the rightful candidate of the first Defendant who will represent Gabasawa Constituency of Kano State House of Assembly in the general election scheduled to take place on 28/2/2015, having scored the majority of votes cast at the primary election conducted by the 1st Defendant on 2/72/2014 in Gabasawa Local Government Area of Kano State for the purpose of producing a candidate of the first defendant (A.P.C) for the election.
3. An order of Court restraining the Defendants either through their agents, privies or whosoever claiming on their behalf, from recognizing, treating, publishing, listing or considering the name of 2nd Defendant as the 2nd (sic) Defendant’s candidate to represent Makodo Constituency (sic) of Kano House of Assembly in the general election scheduled to take place on 28/2/2015.

The Appellant addressed this issue from pages 17 to 23 of his brief,

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and he is saying that since first Respondent’s grievance is against the nomination or substantially arises from the Party’s primary election, it is the State High Court that has jurisdiction to entertain the suit; that the trial Federal High Court was wrong to assume jurisdiction, entertained and decided the matter; and that the Court below was equally wrong to hold to the contrary on the face of the outstanding position of this Court in PDP v. Sylva (2012) 13 NWLR (Pt.1316) 85.

The first Respondent says that his case at the trial Court is that there was a primary election conducted by second Respondent, which was duly monitored by third Respondent, INEC, and that he scored majority of the lawful votes cast at the primary election, but third Respondent refused to recognize and treat him as the winner and publish his name; and where a Party’s claim is against an administrative action of the Federal Government or its agency, the proper venue to ventilate his grievance is Federal High Court.

The second Respondent argued that the reliefs are directed against the third Respondents decision to publish the name of the Appellant, who the first

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Respondent said is not a candidate of the second Respondent, who complied with the Guidelines and Rules of the second Respondent for the primary election; and the reliefs fall squarely within the jurisdiction of the Federal High Court.

This issue has been flogged and over-flogged in political cases decided by this Court, and the position is pretty well-settled that any dissatisfied contestant at the primaries is now empowered by Section 87(9) of the Electoral Act, 2010 (as amended) to ventilate his grievance at the Federal High Court or High Court of a State or of the Federal Capital Territory – Lokpobiri V. Ogola & Ors (2015) 10-11 MJSC 74, Jev V. lyortyom (2014) All FWLR (Pt. 747) 749 SC.

In this case, the concurrent findings of the two lower Courts on this issue cannot be faulted. The trial Court was right to take on the matter, as the first and third Reliefs, fall within its jurisdiction.

The final issue is whether the Suit was rightly commenced by Originating Summons and the Court below rightly found on affidavits evidence before it, including the question of forgery. The issue arose from the reasoning and conclusion of the Court below, as

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follows-

The second and fourth Respondents deposed to two Counter Affidavits. In their first Counter Affidavit deposed to by the Assistant Legal Adviser of the second respondent, they admitted that the second Respondent conducted primary election into the Kano State House of Assembly Gabasawa Constituency and that both the first Respondent and Appellant participated in the primary election and that the first Respondent scored 216 votes while the Appellant scored 32 votes. However, in the second Counter Affidavit deposed to by the fourth Respondent, they changed tune and deposed that no primary election was conducted by the second Respondent into the House of Assembly Gabasawa Constituency on 2/12/2014. The Appellant in his Counter Affidavit deposed that the second Respondent did not conduct primary election on 2/12/2014 for Gabasawa Constituency and that no single vote was cast on that day and that the result sheet attached by the first Respondent was a forgery as it did not emanate from the second Respondent and that the report of the third Respondent on the primary election, was a concocted result forged on the letter head of the third Respondent. What

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is clear – – is that the second and fourth Respondents presented two materially contradictory pieces of evidence on the issue of conduct of primary election for the Gabasawa Constituency on 2/12/2014 before the lower Court through their witnesses and both pieces of evidence were given on oath. It is settled law that the consequence of a party presenting such materially conflicting evidences is that the case of the party is destroyed and cannot be believed – – – It is settled law that where a party is shown to have presented on oath two pieces of evidence which are materially inconsistent, such a party will be regarded as unreliable and the totality of his evidence will be rejected by the Court- – – The second and fourth Respondents thus had no credible evidence before the lower Court with regards to the deposition of the Appellant, his allegation that the result sheet of the primary election exhibited by first Respondent was a forgery because it did not emanate from the second Respondent and that the report of the primary election of the third Respondent was forged on the letter head of the third Respondent were documentary hearsay evidence.

The Appellant

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never said he was an official or employee of either the second or third Respondent as he did not state in his affidavit the name of the official or of the person in the employment of the second Respondent that informed him that the result sheet did not emanate from them and or the name of the official or of the person in the employment of the third Respondent who told him that the report was forged on their letter head. This is particularly more so as second Respondent presented no credible evidence before the lower Court to challenge the authenticity of the result sheet and the third Respondent, on its part, confirmed the authenticity of its report on the primary election in its counter affidavit. The deposition of the Appellant on the issue of forgery was, thus, not credible and admissible evidence. The result sheet and report of the third Respondent on the conduct of the primary election supported the assertion of the first Respondent and of the third Respondent on the conduct of the primary election by the second Respondent on 2/12/2014 as against the bare assertion of the Appellant that no primary election was conducted. It is clear that there were no

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material conflicts in the credible evidence contained in the Affidavit of the Parties before the lower Court on material facts necessary for the resolution of the issue identified by the lower Court to have warranted the need for oral evidence. There was, thus, no obligation on the lower Court to have called for oral evidence to resolve any conflict. The lower Court was correct in resolving the issue on the strength of the affidavit evidence before it. The third issue for determination is resolved against the Appellant. In the final analysis, it is the finding of this Court that the appeal of the Appellant lacks merit and it is accordingly dismissed. The Cross-Appeal of the third Respondent is meritorious and it is hereby allowed. The Judgment of the Federal High Court, Kano Judicial Division in suit No. FHC/KN/CS/17/2015 delivered by Hon. Justice Fatun O. Riman on 11/3/2015 is hereby affirmed save for the portion that upheld the right of the Appellant to raise and canvass the issue of non-compliance by first Respondent with provisions of Order 6 Rule 13 of the Federal High Court Rules 2009 and with Section 97 of the Sheriffs and Civil Process Act.

The

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Appellant’s contention is that in the circumstances of this case, Originating Summons is not the appropriate means of commencing and determining the Suit; and that even if the said Counter-Affidavits were contradictory, the proper thing to do was to call oral evidence.

He also submitted that the Court below preferred documentary evidence but what is required or suffice at this stage is oral evidence; that the issue of forgery is an example brought out to expound the conflict in Affidavit evidence; and the claim is declaratory in nature, so must be brought by writ of summons; not originating summons.

The first Respondent submitted that the Court below was right since the Appellant failed to particularize the allegation of forgery; that second and fourth Respondents did not successfully challenge his case so as to warrant calling oral evidence as they are in a better position to challenge the validity of the evidence before the Court.

He argued that his case was the one supported by documentary evidence as rightly pointed out by the Court below, but the Appellant failed to annex a single document emanating from second and third Respondents to

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evidence that there was primary election conducted on 8/12/2014 as opposed to him, who placed concrete evidence of his victory in the primary election that was conducted or 2/12/2014.

The second Respondent submitted that contrary to his position, the Court below considered the import of the said Further and Better Counter Affidavit filed on behalf of second and fourth Respondents, and since they did not appeal against same, they are bound by it; that the Appellant failed to discharge on him to prove his allegation of forgery beyond reasonable doubt; and he also had a duty to show, particularly in the face of documentary evidence presented by the first and third Respondents that the primary election never held.

By Order 3 Rule 1 (1) of the 2009 Rules, Civil proceedings at the trial Court may be commenced by Writ or Originating Summons, etc. As the first Respondent said, most, if not all, the pre election matters that come to this Court are initiated by Originating Summons but the Appellant contends that the writ of Summons is more appropriate.

The distinction between two modes of commencing an action boils down to whether there is a serious

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dispute as to facts involved.

Where there is a serious dispute as to facts, a Writ of Summons must be issued. In other words, where it is evident from the Affidavit evidence before the Court that there would be “an air of friction” in the proceedings, an Originating Summons is no longer appropriate – see NRC V. Cudjoe [2008] 10 NWLR (Pt.1095) 329 and Famfa Oil Ltd. V. A.-G. Fed. (2003) 18 NWLR (Pt. 852) 453, where this Court held-

The very nature of an Originating Summons is to make things simpler for hearing. It is available to any person claiming interest under a deed, will or other written instrument whereby he will apply by Originating Summons for the determination of any question of construction arising under the instrument for a declaration of his interest – – It is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the pleading of the parties to the suit. In such a situation, there is no serious dispute as to facts but what the Plaintiff is claiming is the declaration of his rights. lf there are serious disputes as to facts then a normal Writ must be taken out not

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Originating Summons Doherty v Doherty (1968) NMLR 241.

In effect, Originating Summons is a procedure wherein the evidence is mainly by way of documents and there is no serious dispute as to their existence in the pleadings – see Famfa Oil V. A-G. Fed. (supra).

It is usually heard on affidavit evidence and involves questions of law rather than disputed issues of fact – see Inakoju V. Adeleke (2007) 4 NWLR (Pt. 1025) 423, wherein Tobi, JSC, explained that –

In Originating Summon, facts do not have pride of place in the proceedings. The cynosure is the applicable law and its construction by the Court. The situation is different in a trial commenced by Writ of Summons where the facts are regarded as holding a pride of place and the fountain head of the law in the sense that the facts lead to a legal decision on the matter. That is not the position in proceedings commenced by Originating Summons where facts do not play a central role but an infinitesimal role.

Facts may be inconsequential in proceedings commenced by way of Originating Summons, which are determined on affidavit evidence, but it is important that conflicts in the affidavits

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are not glossed over – see Gbileve V. Addingi (supra), where this Court affirmed the legal position stated by Nwodo, JCA (of blessed memory), as follows

Where proceedings in a Court are by affidavit evidence, it is important that conflicts in such affidavits are not glossed over. The Court is enjoined to look at the nature of the conflict. When facts are deposed in an affidavit, the purpose of counter-affidavit is to contradict those facts and not merely set up a distinct fact as defence. Where the conflict arising from affidavit and counter affidavit depositions are not on material issues, the Court calling for oral evidence become unnecessary. ln effect, where the conflicts are not material to the case or where the facts are inadmissible in evidence, the Court should not be saddled with the responsibility of calling oral evidence to resolve the conflict – Furthermore where conflicting evidence can be resolved from documentary evidence, the need to call oral evidence becomes unnecessary.

The bottom line, as far as this case is concerned, is the observation – “when facts are deposed to in an affidavit, the purpose of a counter- affidavit is

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to contradict those facts and not merely set up a distinct fact as defence”. In this case, the first Respondent, as the Plaintiff, averred as follows in paragraphs 23-29 of his supporting Affidavit –

23. That all the Defendants were fully aware that I am the only declared winner in the primary election for Gabasawa Constituency of Kano State House of Assembly conducted by 1st Defendant in Gabasawa Local Government Area on the 2/12/2014.
24. That I have applied for certified true copy of the Report of the said primary election from the 3rd Defendant. A copy of the said Report is herewith annexed and marked as Exhibit I.
25. That on (sic) 1st Defendant received and accepted Exhibit I.
26. That the 1st Defendants refusal to submit my name to 3rd Defendant was a ploy to favor some party members without following due process.
27. That there is no any communication in whatever form from any of the Defendants against my candidature to date.
28. That I am the only duly nominated candidate of the 1st Defendant for Gabasawa constituency of Kano State House of Assembly.
29. That I am still alive and I have not withdrawn nor am I

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incapacitated by any means.

The first Respondent also annexed thereto – the Result sheet for Party Primaries for State House of Assembly with his name on it as the declared winner having scored the highest number of votes cast.

The second and fourth Respondents, as the first and fourth Defendants, filed a Counter-Affidavit deposed to by “Nura Zubair”, wherein he averred – “the 1st Defendant conducted primary election”; that the “1st Defendant forwarded the name of the Plaintiff” to INEC and that the “Plaintiff is the rightful candidate for the election”.

The same second and fourth Respondents later filed a Further and Better Counter Affidavit, wherein fourth Respondent averred

1. That l am the 4th Defendant in this Suit.

2 That I am the Chairman of the APC Kano, the 1st Defendant in this Suit.

3. That I have gone through the Counter Affidavit deposed to by Nura Zubair an Assistant Legal Adviser of the 1st Defendant on behalf of the 1st defendant and myself.
4. That I did not as the Chairman of the 1st Defendant give the said Nura Zubair authority to depose to the content of the Counter Affidavit as they do not represent the true

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position of facts.

5. That I as the Chairman of the 1st Defendant know as a fact no primary election into the House of assembly of Gabasawa Constituency was conducted by the 1st Defendant on the 2nd December, 2014.
6. That the 1st Defendant did not send the name of anybody to the 3rd defendant in respect of the said Gabasawa House of Assembly Primary election.
7. That the counter affidavit deposed to by Nura zubair was done without my consent and knowledge and that of the 1st Defendant because of breakdown in communication.
8. That paragraph 3 to 7 of this further and better affidavit represent the true position of facts in this case.

The Appellant, as the second Defendant, filed his Counter Affidavit, wherein he averred as follows in paragraphs 8 to 11 thereof that-

8. Contrary to paragraph 11 of the Plaintiff’s Affidavit the 1st Defendant did not conduct any primary election in Gabasawa Constituency.
9. Contrary to paragraph 12 and 14 of the Plaintiffs affidavit even, single vote was not cast on the said 2/12/2014 because the 1st Defendant did not conduct any primary election in Gabasawa constituency.
10. The Plaintiff was

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not declared as the winner of the primary election and the purported result sheet attached by the Plaintiff is not an original result but forged result.

3. The result sheet exhibited by the Plaintiff does not emanate from the 1st Defendant.

The third Respondent filed counter-Affidavits to Counter Affidavit and Further and Better Counter-Affidavit of 1st and 4th Defendants.

The third Respondent averred in paragraph 4 (c) of its counter Affidavit to the 1st and 4th Defendants counter-affidavit that the said 1st and 4th Defendants did not forward the name of the plaintiff as its candidate to the 3rd Defendant. It further averred in paragraph 4 of its counter-Affidavit to the further and Better Counter Affidavit-

b) That the 1st defendant conducted its Primary election into State House of Assembly Gabasawa Constituency on 2/12/2015 and was duly monitored by the 3rd Defendant.

c) That the 3rd Defendant on 25/12/2015 at its National Headquarters Abuja received Form CF001 from the 1st Defendant in the name of the 2nd Defendant as its candidate standing for

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election into State House of Assembly Gabasawa Constituency. The said Form CF001 is hereby annexed and marked as Exhibit A3.

So, on one side of the divide are depositions by the first Respondent and third Respondent that are supported by documentary evidence, and on the other side of the divide is the Appellant’s bare assertion that the second Respondent did not conduct any primary election. The second and fourth Respondents, who should have clarified the issue of whether there was a primary election or not, failed to do so, and instead, they took divergent positions in their Affidavit evidence.

As the first Respondent rightly submitted, the said Respondents did not apply to have the evidence of Nura Zubair discountenanced, and allowed the trial Court to be left with the contradictory evidence that the primary election took place and that it was NOT conducted.

Apart from the fact, as the first Respondent submitted, that it is “logically inconceivable” for the Party to refuse to hold the primaries, they cancelled themselves out, and their evidence was worthless.

The law insists that where there are material contradictions in the evidence

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adduced by a Party, the Court is enjoined to reject the entire evidence as it cannot pick and choose which of the conflicting version to follow – Kayili V. Yilbuk & Ors (2015) LPELR -24323(SC).

A piece of evidence is contradictory to another when it asserts or affirms the opposite of what that other asserts. Put another way, evidence contradicts evidence, when it says the opposite of what the other evidence says, not on just any point, but on a material point – Odunlami V. Nigerian Army (2013) LPELR-20701(SC). In this case, the first Respondent says the Party conducted the primary election.

The second and fourth Respondents admitted that fact in their joint Counter Affidavit but stated the opposite in their Further and Better Counter Affidavit – that no primary election was conducted. Without question, the Court below was right to reject the evidence.

The Appellant alleged in his Counter – Affidavit that the Result Sheet of the said primary election exhibited by the first Respondent was a forgery because it did not emanate from second Respondent, and that the third Respondent’s Report was also forged. However Section 115 (3) and (4) of the

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Evidence Act, 2011, provides that –

(3) When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.

(4) When such belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstances of the information.

Obviously, the Appellant did not make out a genuine allegation of forgery to warrant an order for oral evidence for him to prove same – how did he get to know that the said two documents were forged

If someone told him, what are the person’s particulars What are the details – the time, place, and circumstances of the said information There was nothing – no particulars to substantiate the allegation.

Obviously, the Appellant’s disagreements with the decision of the Court below are of no substance, and it’s sometimes, an attempt to turn the law on the head. Take for instance, his argument that the Court below was wrong to rely on

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documentary evidence; not oral.

It is an elementary principle that documentary evidence is used as a hanger to test veracity of evidence, whether oral or by affidavit – see Gbileve V. Addingi (supra), Kimdey V. Mil. Gov. Gongola (1988) 2 NWLR (Pt.77) 445 and Fashanu V. Adekoya (1974) 4 SC 83. Thus, documentary evidence is a hanger to base other pieces of evidence.

In political cases, the only proof of winning of an election is the election result duly issued; mere averments cannot stand up to that. The Court below was right to place a greater value on documentary evidence, which bears eloquent testimony to what happened – See Aiki V. ldowu (2005) 9 NWLR (Pt 984) 47, wherein it was observed-

Documents when tendered and admitted in Court are like words uttered and do speak for themselves. They are even more reliable and authentic than words from the vocal cord of man because they are neither transient nor subject to distortion and misinterpretation but remain permanent and indelible through the ages. The documents bear eloquent testimony to what happened.

In this case, the first and third Respondents annexed documentary evidence to their

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respective Affidavit and Counter-Affidavits, which support the assertion of both Respondents that a primary election was conducted, and that the first Respondent won the said election.

The Court below was, therefore, right to conclude that there were no material conflicts in the credible evidence contained in the Affidavits of the Parties before the trial Court on the material facts necessary for the resolution of the issue the trial Court identified to have warranted the need to call oral evidence to resolve any conflict.

The finding of the Court below on this issue cannot be faulted As it put it “the trial Court was correct in resolving the issue on the strength of the affidavit evidence before it” l agree wholeheartedly.

The end result is that this Appeal lacks merit in its entirety, and it is hereby dismissed. The Judgment of the Court below is affirmed. Each Party will bear their own costs.

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SC. 433/2015