➥ CASE SUMMARY OF:
Barr. (Mrs.) Amanda Peters Pam & Anor. V. Nasiru Mohammed & Anor. (2008) – SC
by Branham Chima (SAL).
➥ COURT:
Supreme Court – SC.238/2007
➥ JUDGEMENT DELIVERED ON:
Friday, the 30th day of May, 2008
➥ AREA(S) OF LAW
Originating summons;
Fair hearing;
Substitution of candidate’s name;
Locus standi.
➥ PRINCIPLES OF LAW
⦿ FAIR HEARING IS TO BE JUDGED BY THE NATURE AND CIRCUMSTANCES OF THE CASE
The question of fair hearing is not just an issue of dogma. Whether or not a party has been denied of his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case; the crucial determinant is the necessity to afford the parties equal opportunity to put their case to the court before the court gives its judgment. In the instant case, there has been no complaint that the respondents were granted advantages or special favours in the presentation of their case which were denied to the appellants. A complaint founded on a denial of fair hearing is an invitation to the court hearing the appeal to consider whether or not the court against which a complaint is made has been generally fair on the basis of equality to all the parties before it. — A. Oguntade, JSC.
⦿ THE VERY ESSENCE OF FAIR HEARING UNDER SECTION 36 OF THE CONSTITUTION
The court below at pages 289 to 291 of the record in its judgment examined the appellants’ complaint as to absence of fair hearing and said: “It must be noted that the court must balance its discretionary power to grant or refuse an adjournment with its duty to endeavour to give an appellant the opportunity of obtaining substantial justice in the sense of his appeal being granted a fair hearing or even in the court below. This is because of the need that in granting the hearing on the merits no injustice is done to the other party where that opportunity or fair hearing existed in the court below, the appellate court has no business interfering. See University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) page 142; Ogundoyin v. Adeyemi (2001) 13 NWLR (pt. 730) 403 at 421. The very essence of fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria 1999 is a hearing which is fair to both parties to the suit; be they plaintiffs or defendants or prosecution or defence. The section does not contemplate a standard of justice which is biased in favour of one party and to the prejudice of the other. Rather, it imposes an ambidextrous standard of justice in which the court must be fair to both sides of the conflict. The hearing must be fair and in accordance with the twin pillars of justice, read as pillars of justice, namely audi alteran partem and nemo judex in causa sua per Onu J.S.C. at 421. See also Ndu v. State (1990) 7 NWLR (pt. 164) 550. A party who will be affected by result of a Judicial inquiry must be given an opportunity of being heard, Otherwise, the action taken following the inquiry will be Unconstitutional and illegal. See Ogundijun v. Adeyemi (2001) 13 NWLR (Pt. 730) 403 at 423 per Onu J.S.C. See also Atande v. State (1988) 3 NWLR (pt. 85) 681. In the light of the above I have no difficulty in Resolving this issue of fair hearing or not against the Appellant. Therefore this appeal lacking in merit is hereby dismissed.” I agree with the views expressed by the court below above. I am unable to hold that the appellants were denied their right to fair hearing as enshrined in section 36 of the 1999 Constitution. — A. Oguntade, JSC.
⦿ CRITERIA TO HAVE LOCUS STANDI
It is the law that to have locus standi to sue, the plaintiff must show sufficient interest in the suit or matter. One criterion of sufficient interest is whether the party could have been joined as a party in the suit. Another criterion is whether the party seeking the redress or remedy will suffer some injury or hardship arising from the litigation. If the Judge is satisfied that he will so suffer, then he must be heard as he is entitled to be heard. See Chief Ojukwu v. Governor of Lagos State (1985) 2 NWLR (Pl. 10) 806; Busari v. Oseni (1992) 4 NWLR (Pt. 237) 557; Albian Construction Co Ltd. v. Rao Investment and Property Ltd. (1992) 1 NWLR (pt. 219) 583; United Bank for Africa Ltd. v. Obianwu (1999) 12 NWLR (Pt. 629) 78 … A party who is in imminent danger of any conduct of the adverse party has the locus standi to commence an action. See Olawoyin v. Attorney-General of Northern Region (1961) 1 All NLR 269; Gamioba v. Ezesi (1961) 1 All NLR 584; Olagunju v. Yahaya (1998) 3 NWLR (Pt. 542) 501. — Niki Tobi, JSC.
⦿ MEANING OF “REASONABLE TIME” IN SECTION 36 OF CONSTITUTION
The operative words for our purpose in this appeal are “reasonable time”, words which in their docile content are vague, and nebulous. A reasonable time is a time justified by reason. Reasonable time in its nebulous content cannot be determined in vacuo but in relation to the fact of each case. This is because what constitutes a reasonable time in one case may riot necessarily constitute a reasonable time in another case. Reasonable time in section 36 presupposes the granting of an adjournment in cases. In dealing with the reasonable time concept in section 36, the court will take into consideration the nature of the case in terms of the magnitude, intricacies, versatilities, complexities and volume of the work involved. In this respect, the court will consider the assemblage of witnesses and documents, if any and the likely or possible time to get all these. Above all, the court will take into consideration the procurement .of exculpatory or inculpatory evidence as the case may be. A reasonable time is also a moderately and practically possible time within which a court or tribunal could complete a trial and pronounce its decision. See Effiom v. State (1995) 1 NWLR (Pt. 373) 507. Reasonable time means the period of time which, in the search for justice, does not wear out the parties and their witnesses and which is required to ensure that justice is not only done but appears to reasonable person to be done. See Ariori v. Elemo (1983) 1 SCNLR 1; Chief Atejioye v. Ayeni (1998) 6 NWLR (Pt. 552) 132. — Niki Tobi JSC.
⦿ MEANING OF MISCARRIAGE OF JUSTICE
The decision is not at large but is carefully qualified by the expression “miscarriage of justice”. The court used the expression twice. Miscarriage of justice is simply justice miscarried. I do not think I have said much. I should go further to say that miscarriage of justice is failure of justice. It is the failure on the part of the court to do justice. It is justice misapplied, misappreciated or misappropriated. It is an ill conduct on the part of the court which amounts to injustice. See Onagoruwa v. The State (1993) 7 NWLR (Pt. 303) 49. Miscarriage of justice arises in a decision or actcome of legal proceedings that is prejudicial or inconsistent with substantial right of a party. See Joshua v. The State (2000) 5 NWLR (pt. 658) 591; Sanusi v. Ameyogun (1992) 4 NWLR (Pt. 237) 527. — Niki Tobi JSC.
⦿ INTRODUCTION OF ORIGINATING SUMMONS
The English Common Law which Nigeria received has developed a corpus juris on when an action can and cannot be commenced by originating summons. The procedure for originating summons came into the English Legal System by the Chancery Procedure Act of 1852 which replaced the old mode of commencing proceedings in the Court of Chancery by “bill” with the commencement of a suit in certain cases only by summons originating proceedings in chambers. In 1883, the rules of the Supreme Court 1875 were stated and the term originating summons was for the first time introduced. See Re Holloway (A solicitor ex-parte Pallister (1894) 2 QS 163. See also Re Priver, Lindsell v. Phillips (1885) 30 Ch. D 291; In Re Giles Real and Personal Coy v. Michell (1890) 43 Ch. 0391; Nutten v. Holland (1894) 3 Ch. 408. — Niki Tobi JSC.
⦿ IF NO SUBSTANTIAL DISPUTE THEN ORIGINATING SUMMONS SHOULD BE USED
It is clear from the above that an action could be brought by originating summons if the issues involved are not in dispute or in controversy or not likely to be in dispute or in controversy. Putting it negatively, where the issues are in dispute or are contentious, an originating summons procedure will not lie. In such a situation, the party must initiate the action by a writ of summons, a procedure which accommodates pleadings of facts. An action could be brought by originating summons where the sole or principal question in issue is or is likely to be one of construction of a statute, or of any instrument made under a statute or of any deeds, will, contract, or other document or some other question of law. It is not the law that once there is dispute on facts, the matter should be commenced by writ of summons. No. That is not the law. The law is that the dispute on 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. — Niki Tobi JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
A. Oguntade, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT
Chief (Mrs.) V.O. Awondo
⦿ FOR THE RESPONDENT
Okon N. Efut
D.D. Dodo (SAN)
➥ CASE FACT/HISTORY
The 1st respondent was the plaintiff at the Federal High Court, Abuja where he brought a claim against the appellants and the 2nd respondent as the defendants claiming the following reliefs: “1. A Declaration that the 2nd defendant’s letter of 19th February, 2007, to the 1st defendant applying to substitute the Plaintiff Nasiru Mohammed as the 2nd defendant’s candidate for the April 2007 Abuja Municipal Area Council AMAC/BWARI Federal House of Representative Election is illegal, null, void and of no effect whatsoever.
At the completion of hearing on 5-04-07, the trial court gave judgment in favour of the 1st respondent in accordance with the reliefs he sought from the court.
Later however, the 1st appellant brought an application that the judgment given on 5-04-07 be set aside on the ground that she had not been served with the processes leading to the judgment. The 1st respondent in whose favour the judgment on 5-04-07 had been given did not oppose the application. The trial judge Tijani Abubakar J. had no difficulty in setting aside the said judgment on 18-04-07.
The 1st respondent’s suit was heard on the same day i.e. 18-04-07 and judgment given a second time that day in favour of the 1st respondent. The earlier judgment in the case was similar in favour of the 1st respondent. The appellants were dissatisfied. They brought an appeal before the Court of Appeal, Abuja (hereinafter referred to as ‘the court below’). The 1st respondent also filed a cross-appeal., on 5-07-07, the court below dismissed both the appeal and the cross-appeal. The appellants were dissatisfied with the judgment of the court below and have come before this Court on a final appeal.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
- Whether the Court of Appeal was right in affirming that 1st respondents had locus standi to institute the suit to challenge his substitution as a candidate of the ANPP 2nd Appellant to contest the AMAC/BWARI Federal Constituency when at the time of institution of the suit i.e. March 22, 2007, he had ceased to be a member of ANPP by reason of expulsion on February 2, 2007.
RULING: IN RESPONDENT’S FAVOUR.
A. IT WAS NOT ESTABLISHED THAT THE 1ST RESPONDENT WAS EXPELLED FROM THE ANPP TO NOT HAVE LOCUS STANDI
“It seems to me that from the nature or drift of evidence available before the trial court, it was not satisfactorily established that the 1st respondent had been expelled from the 2nd appellant by a letter dated 2-02-07. Elementary prudence and common sense dictate that if indeed the 1st respondent had been expelled from ANPP on 2-02-07, the letter allegedly written by ANPP on 19-02-07 exhibit NAS 4 ought to have given as reason for the substitution of the 1st respondent the fact that he had been expelled from the party. It is remarkable that the fact of the expulsion of the 1st respondent was never brought up anywhere until the 1st respondent had sued. It is to be expected that if in truth the 1st respondent was expelled it would have formed a valid basis to substitute his name with that of the 1st appellant. The cornerstone of the case of the 1st respondent was that he was substituted in a manner that did not conform with the law.”
“The 2nd appellant in its letter exhibit NAS 4 dated 19-02-07 wherein it purported to substitute the 1st respondent with the 1st appellant no reason whatsoever was given for the substitution. In the letter from the 2nd appellant, the writer one Senator Sa’idu Umar Kumo simply wrote: “I am forwarding herewith details of approved substitutions in respect of the National Assembly candidates for your necessary action please.” Clearly, the 2nd appellant did not comply with the provisions of Section 34 in substituting the 1st appellant with the 1st respondent as the candidate for the National Assembly election on 21-04-08.”
.
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- Whether the Court of Appeal was right in holding that the 1st appellant’s right to fair hearing was not breached in the determination of the issues before the trial Court.
RULING: IN RESPONDENT’S FAVOUR.
A. THERE WAS NO DENIAL OF FAIR HEARING: THE COURT HAD TO DECIDE THE ELECTORAL MATTER IMMEDIATELY
“I stated earlier that the judgment previously given in favour of the 1st respondent on 5-04-07 was set aside on 18/04/07 on the ground that the appellants had not been served with the processes leading to the judgment. The proceedings of the trial court reveals that the 1st respondent’s counsel Mr. Dodo S.A.N. prayed the trial court to hear the suit immediately after the previous judgment was set aside. Mr. Nwankwo S.A.N. for the appellants however insisted that he could not be rushed as he needed time to file a counter-affidavit. The trial court granted appellants a stand-down till 11.30a.m. Mr. Nwanko S.A.N. later sought a further stand-down till 3p.m. to enable him file a counter-affidavit notwithstanding that Mr. Dodo S.A.N. had opposed a further stand-down. The trial court granted a further stand down till 1.30p.m. After the second stand-down, all the parties by their counsel made submissions to the trial judge after they had filed their respective affidavits. None of the parties was disabled from putting across to the trial court his arguments in the matter. Can it be said that there was a denial to the appellants of their right to fair hearing I think not. I have no doubt that the proceedings before the trial court on 18/4/07 were rushed and conducted in a hurry. This was so because the elections to the National Assembly which formed the subject-matter of the suit were to be conducted on 21-04-07. In other words there was only a period of 3 days available to the parties and court to come to a determination of the matter. Given the nature of the special circumstances that prevailed, I am unable to conclude that the appellants were denied their right to fair hearing. ”
.
.
- Whether originating summons was appropriate procedure in the determination of the issues raised in the suit.
RULING: IN RESPONDENT’S FAVOUR.
A. THE FACTS IN THE SUIT WERE NOT IN SERIOUS CONTROVERSY
“In the instant case, the simple question for the trial court to determine was whether or not the letter by which the 2nd appellant sought to substitute the 1st respondent with the 1st appellant was in conformity with the requirements of section 34 of the Electoral Act, 2006. This was not a case in which the truth of the relevant facts was in serious controversy. The trial court needed to determine whether or not there was cogent and verifiable reason given for the substitution of the 1st appellant for 1st respondent. In my humble opinion, this is the type of case in which the procedure of originating summons is eminently reasonable and relevant. The procedure of originating summons ought not to be used where the facts are likely to be in dispute: See Theophilus Doherty v. Richard Doherty [1968] NML.R. 241 and National Bank of Nigeria v. Ayodele Alakija [1978] 9 & 10 SC.59.”
.
.
.
✓ DECISION:
“This issue must be resolved against the appellants. In the final conclusion, I am of the view that this appeal has no merit. It is accordingly dismissed with N50,000.00 costs in favour of 1st respondent against the appellants.”
➥ MISCELLANEOUS POINTS
***NIKI TOBI JSC, DISSENTING –
⦿ THERE WAS NO FAIR HEARING TO THE APPELLANT
“On the same day and date of 28th March, 2007, the 1st respondent’s counsel, Chinedu Umeh filed a written address in support of the originating summons, which was not filed. In other words, there was no proof of service before the written address was served. I do not see anywhere in the Record where the learned trial Judge ordered the filing of a written address. As if that is not enough injustice to the appellants, the learned trial Judge delivered judgment in favour of the 1st respondent on 5th April, 2007, nine days after the filing of the written address and also nine days after the bailiff swore to an affidavit of non-service of the court processes. It is most unfortunate and sad that a trial Judge can do such a thing. It is this type of thing and its prototype that make the Hausa man exclaim, Habal The only capable conclusion one can draw from this, and which is most favourable to the Judge, is that he was in such a hurry to complete the case. I should stop here. That will be kind to the learned trial Judge.”
⦿ NO REASON FOR REFUSING ADJOURNMENT WAS GIVEN
“In this appeal, the learned trial Judge did not give any reason for refusing the application of counsel for the 1st appellant to stand down the case till 3.00 pm. Again, he kept the reason to himself. The law does not allow him to keep the reason to himself.”
⦿ SUFFICIENT TIME WAS NOT GIVEN TO THE APPELLANT FOR REPLY
“From 11.00 am to 1.30 pm, by my calculation is 2 hours and thirty minutes. By the order of the learned trial Judge, the 1st appellant was to reply to the affidavit in support of the originating summons of the length of pages 7 to 10 of the Record and the exhibits running from pages 11 to 72. I do not think any human being can do that. Certainly not Mr. Nwankwo, the human being that he is and so he asked for more time. Only God can do that because he is the most knowledgeable and most omnipresent and omnipotent. As Mr. Nwankwo could not perform the miracle he was expected to perform, he was almost on his knees pleading that the matter be further stood down till 3.00 pm. Let me repeat his most pathetic plea at page 187 of the record: I was just served. The papers are bulky. I am human. I am working on the documents. I am ready to file. I want to file a counter. I am not in a position to file my papers. I am still working. I want further stand down to 3.00 pm. At page 188, the learned trial Judge, refusing the application, ruled: “This matter is stood down to 1.30 pm for 3rd defendant to file their papers.” The impression is created that Mr. Nwankwo’s application that the matter be stood down till 3:00 pm was granted and that the 1st appellant had no reason to complain that she was denied fair hearing. I do not think that is correct because it is not borne out from the Record. The application to stand down the matter till 3.00 pm at page 187 of the Record was refused by the trial Judge at page 188 of the Record. And so the matter was stood down till 1.30 pm.”
⦿ CASES ON ADDRESS OF COUNSEL; ADDRESS OF COUNSEL FORMS PART OF A CASE
“Let me pause here to take two cases of this court on address of counsel. One is Obodo v. Olomu (1987) 3 NWLR (Pt. 59) 111. The other is Ihom v. Gaji (1997) 6 NWLR (Pt. 509) 526. In Obodo v. Olomu, at the close of the cases of the parties, the learned trial Judge ordered them to send their addresses to him in writing and he adjourned to the 2nd of August, 1983 for judgment. Judgment was not delivered on 2nd of August 1983 but on 14th of September, 1983. Only counsel to the defendant submitted written address ordered to be submitted to the trial court. The written address of the defendant was not served on the plaintiffs counsel. The plaintiffs counsel had no opportunity of replying to the defendant’s submission. This court held that: (1) address of counsel form part of the case and failure to hear the address of one party however overwhelming the evidence on one side vitiates the trial; (2) in the instant case since the judgment of the trial court was based almost solely on the defendant’s counsel address, there is a miscarriage of justice; (3) in a written address, the court must ensure that the parties exchanged addresses. In Ihom v. Gaji, this court also held that addresses form part of a case and failure to hear the address of one party, however overwhelming the evidence seems to be on one side, vitiates the trial, because in many cases, it is after the addresses that one finds the law on the issues fought not in favour of the evidence adduced.”
⦿ REFUSAL FOR A APPELLANT TO FILE WRITTEN ADDRESS IS DENIAL OF FAIR HEARING
”In my view, as long as counsel for the 1st appellant was not given opportunity to write a written address in response to that of the 1st respondent, she was denied the right to fair hearing and that is the point I am labouring to make. That apart, Obodo held that the there must be exchange of written addresses. There was no such exchange in this appeal. It was a one way affair, an affair of the 1st respondent who had a field day. This destroys the age long adage that what is good for the goose is also good for the gander. And by way of analogy, the goose is the 1st respondent and the gander is the 1st appellant.”
⦿ THE RES COULD NOT HAVE BEEN DESTROYED IF EXTRA TIME FOR FILING HAD BEEN DESTROYED
“This court held that where the res in a case is in danger of being wiped out, the court must take the fast track or lane to conduct a speedy hearing of the case. The whole essence of litigation in a matter where there is a res, to ensure that it is protected and not destroyed or annihilated. The res in this appeal is the candidature of the 1st respondent. The million naira question I have to ask is whether the res could have been destroyed if the learned trial Judge stood down the matter to 3.00 pm as requested by counsel for the 1st appellant This is the relevant question. In my view, it should have not made any difference if the matter was stood down till 3.00 pm. What difference really could it have made in a matter of ninety minutes I should go further, and here I will deal with some calculation of days and dates. By my manual calculation (and I had no access to the 2007 calendar) 18th April, 2007 was a Wednesday and the election was to take place on 21st April, 2007, a Saturday. What harm could have been done to the res in terms of destruction if the matter was adjourned to the following day, Thursday, 19th April, 2007 to enable 1st appellant to prepare her case, by way of counter affidavit and written address, even if in a hurry What difference could it have made between Wednesday and Thursday I did not see any difference as the election was to come up on 21st April, 2007, which was two days to the election. What the 1st respondent could do in three days he should have been able to do in two days. But fundamentally, counsel for the 1st appellant asked that the case be stood down till 3.00 pm on Wednesday Again, I ask what difference could it have been made if the learned trial Judge granted the application to stand down the case till 3.00 pm. The only difference I see is that the learned trial Judge could not have had the opportunity to exhibit his trial power, which was clearly an abuse of the constitutional right to fair hearing by the 1st appellant. That is bad, very bad indeed.”
⦿ CAUSE LIST SHOULD BE STUCK TO BY THE COURT & PARTIES
“I was almost forgetting the argument of learned counsel for the appellants that as the case was on the Cause List for mention, it was wrong for the learned trial Judge to hear it and give judgment. I entirely agree with the submission. I still remember a judgment of this court to the effect that a trial Judge should follow the Cause List in the sense that where a matter is set down in the Cause List as a motion, it should not be heard on its merits. I have forgotten the case However, in the most unlikely situation that there is no such decision of this court, I will give one now and here. A Cause List is “in English practice, a roll of actions to be tried in the order of their entry, with the names of the solicitors for each litigant, made out for each day during the sittings of the courts.” See Black’s Law Dictionary (6th edition) page 221.1 will be more comfortable in changing the word “solicitors” as used by the Dictionary to Barristers. A Cause List in our jurisprudence is a list showing or indicating the cases to be taken by the court for the day. It includes the action to be taken in each case and counsel to do the cases. In respect of the action, the Cause List clearly indicates whether the case is for mention, motion, hearing or judgment. A trial Judge, or an appellate Judge, must obey the Cause List in the sense that he must not go outside the action to be taken in each case. Where a case is for hearing of motion, the trial Judge must hear the motion and adjourn for any other process. On no account should he hear a motion and hear the merits of the matter, not to talk about delivering judgment. He may consider doing that in the very rare circumstance of consent by parties.”
⦿ PURPOSE OF A CAUSE LIST
“The business of the court is exact and so exactly put in the List. The aim or objective of the Cause List is to give notice in advance to the parties, the business of the day in respect of the case. It enables the parties and their counsel, if any, to prepare in advance. The parties should not be taken by surprise. When the learned trial Judge decided to hear the merits of the matter after granting the motion for setting aside the judgment, he took the 1st appellant by surprise. The 1st appellant left the experience of surprise to embarrassment when the learned trial Judge refused to stand down the case to 3.00 pm. What a rush! A trial Judge has not the unfettered discretion in the adjournment of matters. He must exercise his discretion judicially and judiciously. An appellate court will intervene if he does not exercise his discretion judicially and judiciously. See University of Lagos v. Aigoro (1980) 1 NWLR (Pt.1) 143; Ebong v. Reicon Company Limited (1998) 4 NWLR (Pt. 547) 655; Chief Akpan v. Ekpo (2001) 5 NWLR (Pt. 707) 50.”.
⦿ ORIGINATING SUMMONS OUGHT NOT TO HAVE BEEN USED IN COMMENCING THE SUIT
“I have taken the time to reproduce the above to make the point that there is a dispute in respect of Form CF004A at page 26 of the record. The alleged forgery is that of the signature of the 1st respondent. It is on the left hand side of the document. The signature of the 1st appellant is also on the left hand side, immediately below that of the 1st respondent. They are all on the right of the photograph of the 1st appellant. By the above and paragraph 10 of the counter affidavit of the 1st appellant the issue of forgery of Form CF004A is in violent and riotous dispute. Forgery as an offence must be proved beyond reasonable doubt. In Domingo v. Queen (1963) 1 All NLR 81, this court held that one of the intents set out in section 465 of the Criminal Code must be proved. In the offence of forgery, the prosecution must prove that the document is a forgery and that it was forged by the accused. The prosecution must prove facts which will enable the court to infer mens rea. See Dr. Aina v. Jinadu (1992) 4 NWLR (Pt. 233) 91;(1963) 1 SCNLR 146 Where a party denies making a document which is a forgery, as in this appeal (see paragraph 10 of the counter affidavit) the burden of proof is on the party alleging the forgery, who is the 1st respondent. And proof is by evidence and evidence can only be procured by facts. In view of the fact that the facts are very much in dispute an originating summons ought not to lie in this matter.”
⦿ THERE IS COUNTER AFFIDAVIT AND THUS CLEAR DISPUTE
“The Court of Appeal cited the case of Jimoh v. Olawoye (2003) 10 NWLR (Pt.828) 307 and relied on the following passage of Onnoghen, JCA (as he then was): “It is however very important to note that the law does not envisage a situation of no dispute at all in a proceeding commenced with originating summons but that of absence of substantial dispute. In other words, there can be disputed facts but such dispute must not be substantial. Where the disputed facts are substantial then originating summons procedure is inappropriate, the proper mode of commencing such an action is by writ of summons so that pleadings can be filed and exchanged to determine the issue in controversy between the parties. When you look at the facts, it is very clear that the facts as presented by the respondent in the supporting affidavit; there was no counter affidavit by the appellants, cannot be said to be in substantial dispute since it is agreed that the respondent was at the material time the Chairman of Ifelodun Local Government and was suspended from office.” Onnoghen, J.C.A. (as he then was) has correctly stated the law and I agree entirely with him. The case is however not applicable to the facts of this case. As opposed to Jimoh where Onnoghen, J.C.A. (as he then was) said that there was no counter affidavit, there is a counter affidavit in this matter and so there is a clear dispute. That apart, as stated above, there is a dispute in respect of the expulsion and substitution of the 1st respondent, and the dispute in my view is substantial, material and tangible. As a matter of fact, that is the legal basis for the action and it cannot be played down at all.”
⦿ MEANING OF REASON AND ITS APPLICATION TO THE CASE AT HAND
“Although this court was involved in the construction of section 34(2) of the Electoral Act, the exercise was beyond the law to the facts of the case. Section 34(2) provides: “Any application made pursuant to subsection (1) of this section shall give cogent and verifiable reasons.” The word “reason” means the cause of an event or situation; a fact, event, or statement that provides an explanation or excuse for something. In my view, a court of law cannot interpret the provision of section 34(2) without moving into the facts of the case. And that was what this court did in Araraume when it examined the words “cogent verify and verifiable”. The point I am making is that section 34(2) cannot be examined in vacuo outside the factual milieu.”
.
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It is for the above reasons that I am unable to go along with the majority decision of the court dismissing the appeal. I will allow the appeal on the ground that there is a miscarriage of justice. larder that the case be tried by another Judge of competent jurisdiction by converting the originating summons to a writ of summons. I award N50,000.00 cost s in favour of the appellants.
➥ REFERENCED (LEGISLATION)
Section 34(1) and (2) of the Electoral Act 2006 provides: “34(1) A political party intending to change any of its candidates for any election shall inform the commission of such change in writing not later than 60 days to the election. 34(2). Any application made pursuant to subsection (1) of this section shall give cogent and verifiable reasons.”
➥ REFERENCED (CASE)
⦿ SUBSTITUTION OF CANDIDATE MUST BE ON A COGENT & VERIFIABLE REASON
In Ugwu & Anor. v. Araraume & Anor [2007] 16 S.C. (pt.1) 88, this Court considered the import and effect of Section 34 of the Electoral Act on the substitution of a candidate where no cogent reason was given for the substitution. At page 134 of the report this Court per Tobi J.S.C. said: “Taking Section 34(2) in the con of primaries in particular, I have no doubt in my mind that the subsection is not only important but has an imperative content; considering the general object intended to be secured by the 2006 Act. It is certainly not the intention of the Act to gamble with an important aspect of the electoral process, such as primaries in the hands of a political party to dictate the pace in anyway it likes, without any corresponding exercise of due process on the part of an aggrieved person…. If a section of a statute contains the mandatory ‘shall’ and it is so construed by, the court, then the consequence of not complying with the provision follows automatically. I do not think I sound clear. Perhaps I will be clearer by taking Section 34(2). The subsection provides that there must be cogent and verifiable reasons for the substitution on the part of the 3rd respondent. This places a burden on the 3rd respondent not only to provide reasons but such reasons must be cogent and verifiable. If no reasons are given, as in this case, not to talk of the cogency and verifiability of the reasons, then the sanction that follows or better that flows automatically is that the subsection was not complied with and therefore interpreted against the 3rd respondent in the way I have done in this judgment. It is as simple as that. It does not need all the jurisdiction of construction of statute. I know of no canon of statutory interpretation which foists on a draftsman a drafting duty to provide for sanction in every section of a statute.”
⦿ ORIGINATING SUMMONS IS USED FOR FACTS WITH NO SUBSTANTIAL DISPUTE
In 1907, Neville, J. clearly stated the principle in the English case of Re King. Mellor v. South Australian Land Mortgage and Agency Coy (1907) 1 Ch. 72: “In other words, it is our considered view that originating summons should only be applicable in such circumstances as where there is no dispute on questions of fact or the likelihood of such dispute. Where, for instance, the issue is to determine short questions of construction, and not matters of such controversy that the justice of the case would demand the settling of pleadings, originating summons could be applicable. For, it is to be noted that originating summons is merely a method of ‘procedure and not one that is meant to enlarge the jurisdiction of the court.”
⦿ CASES WHERE ORIGINATING SUMMONS HAVE BEEN APPLIED
As a child of the English common law, the Nigerian legal system spontaneously followed the above position of the law.
In Lagos Executive Development Board v. Awode (1995) 21 NLR 50, where plaintiff brought an action by originating summons for: (i) forfeiture of a lease; (ii) arrears of rent by virtue of sections 12, 38, 47, 50 and 53 of the Lagos Town Planning Ordinance, the court held that the section did not entitle the plaintiff to proceed by originating summons in a claim of that nature and that the action must be commenced by writ in the ordinary way.
In Doherty v. Doherty [1968] NMLR (pt.2) 241, the court held that it is generally unadvisable to employ an originating summons for proceedings against an invitee, and this procedure is of course quite unsuitable where the facts are in dispute, as the evidence is by way of affidavit.
In National Bank of Nigeria v. Alakija (1978) 2 LR 78, the court held that justice could only be done between the parties if all the facts were presented to the court in formal pleadings and the proceedings should have been commenced by writ rather than by originating summons.
In Oloyo v. Alegbe Speaker Bendel State House of Assembly [1983] 2 SCNLR 35, it was held that the action was misconceived in that it was not a dispute to be resolved by way of originating summons in view of the conflicts on crucial issues and facts. It should have been begun by a writ.
In Din v. Attorney-General of the Federation [1986] 1 NWLR (Pt. 17) 471, the Court of Appeal re-echoed the decision of the Supreme Court in the National Bank case and held that commencement of actions by originating summons is a proceeding which should only be used in cases where the facts are not in dispute or there is no likelihood of their being in dispute. Originating summons is also reserved for issues like the determination of questions of a Constitution and not matters of such controversy that justice of the case could demand the setting of pleadings. Since the affidavits in the case were conflicting, the matter could be taken by originating summons.
➥ REFERENCED (OTHERS)
