JUDGMENTS OF THE NIGERIAN COURTS OF JUSTICE
Restoring Nigeria's Law to Nigeria's People - One by One
HON. BASSEY ETIM
PEOPLES DEMOCRATIC PARTY & ORS
IN THE COURT OF APPEAL OF NIGERIA
ON FRIDAY, THE 22ND DAY OF JANUARY, 2016
BEFORE THEIR LORDSHIPS
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A
ONYEKACHI AJA OTISI, J.C.A
PAUL OBI ELECHI, J.C.A
HON. BASSEY ETIM Appellant(s)
1. PEOPLES DEMOCRATIC PARTY
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. BASSEY ALBERT AKPAN Respondent(s)
Chief Assam Assam, SAN with him, Rekana O. Isong and Mrs. Irem and Safiya Ashipu For Appellant
Paul Usoro, SAN with him, Obafolakan Ojibana. for 1st & 3rd Respondents
Alhassan A. Umar. for 2nd Respondent For Respondent
MUSA SAULAWA, J.C.A.
(Delivering the Leading Judgment):
Initially, the Appellant commenced the action in the Federal High Court Abuja Judicial Division by way of an originating summons, seeking various declaratory and injunctive reliefs pursuant to the provisions of Section 87 of the Electoral Act. However, with leave of Court, the 3rd Respondent was joined as the 3rd Defendant to the action. By the Amended originating summons thereof, filed in the Court below on 20/3/15, the Appellant seeks the following reliefs against the Respondent:
1. A DECLARATION that the 1st Defendant is bound by the provisions of its Constitution and its Electoral Guidelines for the primary election 2014 issued for the conduct of primaries to elect its candidates into the Akwa Ibom North East Senatorial District of Akwa Ibom State.
2. A DECLARATION that the 1st Defendant is without vires or authority to ignore or sideline the result of the primaries conducted to elect its candidates for the Akwa Ibom North East Senatorial District of Akwa Ibom State on the 7th day of December, 2014.
3. A DECLARATION that the Plaintiff having won the primaries conducted by the 1st Defendant on the 7th day of December, 2014 to elect its candidates for Akwa Ibom North East Senatorial District of Akwa Ibom State is the 1st Defendant's candidate for the 2015 Senatorial election for that constituency.
4. AN ORDER of this Honourable Court mandating the 1st Defendant to forward to the 2nd Defendant and for the 2nd Defendant to accept the name of the Plaintiff as the 1st Defendant's candidate for the Akwa Ibom North East Senatorial District of Akwa Ibom State for the purpose of the 2015 Senatorial elections for that District.
5. AN ORDER of this Honourable Court mandating the 2nd Defendant to recognize and put on the ballot the name of the plaintiff as the 1st Defendant candidate for the Akwa Ibom North East Senatorial District of Akwa Ibom State for the purposes of 2015 general elections for that Senatorial District.
6. AN ORDER OF INJUNCTION restraining the 2nd Defendant from accepting recognising, dealing with and/or putting on the ballot paper the name of any person other than the plaintiff as the 1st Defendant's candidate for Akwa Ibom North East Senatorial District of Akwa Ibom State at the 2015 Senatorial elections for that Senatorial District.
7. ANY ORDER OR FURTHER RELIEFS to which the Plaintiff may be found entitled by the Honourable Court.
The reliefs sought by the Appellant are predicated upon three questions/issues raised in the originating summons, to the effect thus:
(i) Whether on the proper interpretation of Section 87(9) of the Electoral Act, 2010 (as amended) the Constitution of the 1st Defendant and the Guidelines issued for the conduct of its primaries, the 1st Defendant has the vires and authority to sideline or ignore the outcome of the primaries conducted to elect its candidate far the Akwa Ibom North East Senatorial District of Akwa Ibom State on the 7th day of December, 2014?
(ii) Whether the 1st Defendant has the right and power to refuse to forward the name of the Plaintiff who won the indirect primaries for the nomination of the 1st Defendant's candidate into Akwa Ibom North East Senatorial District of Akwa Ibom State election held on the 7th day of December, 2014 for the 2015 general elections after the plaintiff had won the primaries duly conducted in accordance with the provisions of the Constitution of the 1st Defendant and its Guidelines issued in respect of the National Assembly election primaries?
(iii) Whether the 1st Defendant can accept from the 1st Defendant, recognize and place on the ballot as the candidate of the 1st Defendant for Akwa Ibom North Senatorial District in the 2015 general elections the name of any other person apart from that of the plaintiff, the Plaintiff having won the primaries of the 1st Defendant conducted in accordance with the provisions of the Constitution of the 1st Defendant and Guidelines issued in respect to National Assembly Election?
On 31/3/15, the 3rd Respondent herein filed a motion on notice seeking an Order for the following reliefs:
1. AN ORDER
a. Converting the plaintiff/Respondents Amended Originating summons in this suit dated and filed on 20 March, 2015 in to a writ of summons; and
b. Directing the consequential filing of pleadings and other processes by the parties as if this suit was commenced by way of a writ of summons pursuant to Order 3 Rule 3 of the Federal High Court (Civil Procedure) Rules 2009. Consequent upon the Appellant's application, dated 28/4/15, the Chief Judge of Federal High Court, Abuja, transferred the suit to the Uyo Judicial Division of the Court for trial at Uyo Judicial Division of the Court below. Ultimately, the said motion came up for hearing on 20/5/15.
Learned counsel to the respective parties orally addressed the Court thereon. Whereupon, the Court proceeded to deliver the vexed ruling, to the conclusive effect thus:
In the instant case, there are conflicting averments, disputed facts and disputed documents which can only be resolved by pleadings, calling of oral testimonies (sic) from witnesses and subjecting the witnesses through cross-examination.
Order 3 Rule 8 of the Federal High Court (Civil Procedure) Rules 2009 provides that a Judge shall not be bound to determine any such questions of construction if in the Judge's opinion it ought not to be determined on originating summons but may make such Orders as the Judge deems fit to make.
Premised on the above reasons stated by this honourable Court, it is my considered opinion that the live issues in this case cannot be resolved by this originating summons as the controversies are substantial and not peripheral.
In view of this, the parties are hereby ordered to file their pleadings. The matter will be given accelerated hearing.
The matter is adjourned to 7/7/15 for Confirmation.
IJEOMA L. OJUKWU
The instant appeal is against that ruling. The notice of appeal, filed on 25/6/15 with leave of Court, is predicated upon three grounds. Consequent upon entering the appeal on 03/7/15, the Appellant filed the brief thereof on 27/7/15. It spans a total of 19 pages. At page 5 of the said brief, three issues have been couched for determination , viz:
1. Whether there was any conflict as the fact that the 1st Respondent fail to adhere to its guidelines in nominating a candidate for election to Akwa Ibom North East Senatorial District, which was the central issue for determination in the originating summons, to justify the conclusion by learned trial Judge, that the facts said exhibits produced by the parties are in serious conflict requiring resolution by oral evidence.
2. Whether the documents produced by the Respondents, particularly the 1st and 3rd Respondents, in any way contradicted the case of the Plaintiff/Appellant that he was the winner of the primaries organised by the 1st Respondent for the election of its candidate for Akwa Ibom North East Senatorial District in order to sustain the contention that oral evidence was required to resolve the issues;
3. Whether oral evidence is admissible to prove contents of the documents pleaded and relied upon by the parties.
All the three issues have been argued together at pages 6 - 9 of the brief. In a nutshell, it's submitted that central to the dispute, is the Appellant/Plaintiff's claim that he won the primaries election of the PDP for Akwa Ibom North East Senatorial District. That, contrariwise, the 1st Respondent maintains that it was the 3rd Respondent who won the said nominations and whose name was forwarded to INEC (2nd Respondent).
Further submitted, that Exhibits 6 & 9 (tendered by the Appellant), Exhibit PDP4 (tendered by the 1st Respondent) for considered in the summons, could not have been the plethora of exhibits to raise disputes. That Exhibit BAA1 (similar to Exhibit PDP1) has absolutely no relationship with Akwa Ibom North East Senatorial District.
It is contended, that the said Exhibits BAA1 relate to primaries in Uyo Senatorial District, a Senatorial Constituency totally unknown to law. See First Schedule to the 1999 Constitution, under which the 31st Local Government in Akwa Ibom is listed.
Further contended, that the duty of trial Court is to test the probability of the case of either party by reference to evidence documents that he present rather than placing reliance on oral evidence. See Alhaji Nuhu v. Furore Council (2004) FWLR (Pt.193) 277 at 298; Ebba v. Ogodo (2000) FWLR (pt. 27) 2094, (1984) 4 SC 84; Lion Building Ltd v. Shampe (19966) 12 SC 135.
It is argued, that the only issue that the Court needs to contend with is the interpretation of Exhibits 6, 9 and PDP4, which contents, intent and language are clear and unambiguous. That there is no denial of their contents. The Court can resolve the issues on the basis of these documents. see Bon Ltd v. Aliyu (1997) 7 NWLR (pt. 612) 622 at 627; Egbase v. Oriareghan (1985) 2 NWLR (pt. 10) 884; Ola v. Unilorin (2014) 15 NWLR (pt. 1431) 453 at 461.
According to the Appellant, the guidelines of the 1st Respondent is binding on the parties. See Abdulkadir v. Mamman (2003) NWLR (Pt. 839); Uzodinma v. Izunazo (2011) NWLR (pt.1275).
It was postulated, that no oral evidence is admissible to correct, amend, substitute and/or derogate from the clear and unambiguous contents of Exhibits 6, 9 and PDP4, which speak for themselves. That the case is not about who contested primaries, but rather who won the primaries to qualify to be the party's candidate at the election into the Senate for Akwa Ibom North East Senatorial District.
The Court is urged to hold that the lower Court ventured out of the case presented by the parties, and was shopping for what was not material to the case which could not lead to an effectual resolution of the case.
Further postulated, that the demeanour of witnesses is not in issue in this case. See Akpan v. UAD Utin (1996) 6 SCNJ 244; Onwuka v. Omogui (1992) 3 SCNJ 98; SPDCN Ltd v. Highness Pere Cole (1925) 3 SC 128.
Conclusively, the Court is urged to allow the appeal and grant the reliefs sought.
On the other hand, the 1st and 3rd Respondents' brief spans a total of 18 pages. At page 7 of the said brief, a sole issue has been couched for determination, viz:
''Whether the Trial Court was right when it held "that the live issues in this case can not be resolved by this originating summons as the controversies are substantial and not peripheral and therefore ordered the parties...to file their pleadings with a direction that the matter will be given accelerated hearing.''
All the 3 issues have been argued at page 8 - 17 of the said brief. Submitted, in the main, that the lower Court was absolutely correct in its findings at pages 473 - 474 of the Record, to the effect that there were conflicting averments, disputed facts and documents that could only be resolved by pleadings, calling oral evidence from witnesses.
Further submitted, that there is a fundamental dispute over Exhibits 6 which the Appellant purports was issued by the 1st Respondent. But the 1st Respondent has categorically labelled the same Exhibit 6 as forged and fictitious. There is no deposition in the Appellant's Further Affidavit in support of the originating summons that addresses that contention.
There is a substantial dispute of fact in regard to Exhibit 6, which cannot be resolved without a proper trial in a writ proceeding to allow for the examination and cross examination of witnesses.
Paragraph 6(c) of the 3rd Respondent's AOS counter affidavit was copiously alluded to the effect that Exhibit 6 of the Appellant brief has been denied. That, the substantial issues of facts cannot be resolved effectively and/or properly without a full trial that can only be fostered by and through a writ of summons process.
It was contended, that it is obvious that the issue in the substantive suit goes beyond the construction of documents. The genuineness of Exhibits 6 and 9 is in issue, which cannot be determined through purported interpretation or construction. Thus, this is a classic instance where originating summons procedure is grossly inadequate for the resolution of the issues in dispute. See Ossai v. Wakwah (2006) 4 NWLR (Pt. 969) 208 at 222 - 228 H - D; Olley v. Tunji (2013)10 NWLR (pt. 1362) 275 at 927 A - F; Ezeaku v. Okonkwo (2012) 4 NWLR (pt. 1291) 529 at 547 - 548.
Conclusively, it was posited that this is not a circumstance that Section 15 of the Court of AppealÃ½Act, 2004 contemplates, and cannot therefore avail the Appellant. See Obi v. INEC (2007) 11 NWLR (Pt. 1046) 560 at 639 - 640 E - C.
The Court is urged to refuse the appeal and affirm the ruling of the Court below.
The 2nd Respondent's brief spans 4 pages. At page 2 of the said brief, the 2nd Respondent adopts the 3 issues formulated by the Appellant for determination of the appeal. The submission of the 2nd Respondent is to the effect that it abides by whatever decision is arrived at by the Court in the appeal. Cited and relied on Hope Uzodinma v. Osita Izunaso (No.2) (2011) 17 NWLR (pt. 1275) 30 at 101 Paragraph E; A-G Federation v. Abubakar NSCQR 1 at 174 - 175.
The Appellants' reply brief spans 8 pages. It is in response to the issues raised in the 3rd Respondent's brief. The submission of the Appellant therein is to the conclusive effect, that looking the case as put forward by the parties, the Court would see only one set of delegates, one set of candidates, and one result of primary election in Akwa Ibom North East Senatorial District. Therefore, no oral testimony can alter the contents of those documents in question. The Court is urged to accordingly allow the appeal.
I have amply considered the nature and circumstances surrounding the appeal, the submissions of the learned counsel, contained in their respective briefs of argument vis-a-vis the record of appeal, as a whole. Remarkably, the notice of appeal is predicated upon three grounds. See pages 487 - 489 of the Record. Regrettably, however, the three issues formulated by the Appellant in the brief thereof have not been expressly predicated upon any of the three grounds. Under the Rules of Court, it behoves the Appellant to relate the issues formulated in the brief thereof to specific grounds of appeal. However, considering the fact that all the three issues have been argued together, there is no gainsaying the fact that all the 3 issues in question are distilled from the 3 grounds.
Undoubtedly, looking at the three grounds of the notice of appeal vis-a-vis the particulars thereof, there is every cogent reason for me to appreciate the fact that the complaints therein are not mutually exclusive. Each of the three grounds raises the question of the lower Court holding that the case as presented by the parties raised "conflicting facts" and "conflicts in the affidavits:"
"which could not be reasoned by merely looking at the documents and facts, in the affidavits as the controversies were substantial."
Thus, I would want to uphold the 1st and 3rd Respondents, submission, that basically one issue calls for determination of the appeal, which mutatis mutandis, raises the question to the following effect:
''Whether the lower Court was right in holding that there are conflicting averments, disputed facts and documents which cannot be resolved by pleadings, calling of oral testimonies from witnesses, and not by originating summons.''
After having extensively alluded to the various authorities and relevant statutory provisions vis-a-vis the submissions of the respective learned counsel on the issue, the Court below came to the conclusion in the vexed ruling, thus:
''Premised to the above reasons...it is my considered opinion that live issues in this case cannot be resolved by this originating summons as the controversies are substantial and peripheral.
In view of this the parties are hereby ordered to file their pleadings."
The Appellant's contention, in the main, is that the reasoning and conclusion reached in the vexed ruling of the Court below is wrong and misconceived. Contrariwise, the 1st and 3rd Respondents vehemently disagreed with the Appellant regarding the issue.
It is trite, that one of the objectives of originating summons (or Motion, as the case may be) process is that proceedings initiated thereby are very expeditiously dealt with. That is so, because pleadings are not required to be filed by parties. Thus, witnesses are very rarely examined in the course of the proceedings. Rather, affidavit evidence is [largely] used. As aptly reiterated by this Court very recently:
''Originating summons (process) is usually [resorted to] in cases involving questions of law rather than disputed issues of facts. Contrariwise, where the proceedings involve disputed issues or questions of facts [hostile proceedings], an originating summons should not be resorted to. In that case, a writ of summons should be most ideal for the commencement of the action.
See A.G. ONDO STATE v. MOSES TENE & ORS. (2015) LPELR-CA/B/35) 2008, judgment delivered on 11/11/15 @ 59. See also DOHERTY v. DOHERTY (1969) NMLR 24; TAIWO v. AKINWUNMI (1975) 4 SC 143 @ 172; STANDARD PATTERN CO. LTD. v. IVEY (1962) 1 ALL NLR 452; GILL v. LEWIS (1956) 1 ER 844.
In the instant case, the main grouse of the Appellant is that he had participated in and duly won the primary election conducted by the 1st Respondent for the nomination of candidate for the Akwa Ibom North East Senatorial Election. He relies on Exhibit 6 attached to the affidavit in support of the Amended originating summons. See Paragraph 12 of the Appellants, affidavit:
12. That in line with the PDP Guidelines for 2014 primary election, the Senatorial Indirect primary election took place at Uyo Township Stadium in Akwa Ibom State on the 7th day of December, 2014 and out of the delegates accredited for the election, I scored one hundred and fifty (150) votes being the highest number of lawful votes cast and was declared and returned as the winner of the election by the returning officer having defeated the seven (7) other aspirants. The returning officer issued a certificate of return. Hereto delivered and marked as Exhibit 6 is the result form.
In response to the Appellant's claim in Paragraph 12 of the said affidavit, the 3rd Respondent filed a counter-affidavit vehemently controverting the said Appellant's averment. Most specifically, in Paragraph 6(a) of the counter affidavit thereof, the 3rd Respondent vehemently controverted thus: 6. Further to Paragraphs 4 and 5 hereof and in specific response to Paragraphs 12, 13, 15 and 16 of the AOS Supporting Affidavit, Mr. Osuntokun further informed me on the same date and in the circumstances afore-stated and I verily believe him to be truthful and honest that:
a. The Plaintiff's alleged Result Sheet marked as Exhibit 6 to the AOS Supporting Affidavit is fake, forged and fictitious and was not authored, produced, or signed howsoever by the appointed Returning Officer for the Primary Elections, or any official of the 1st Defendant that conducted the Elections, himself inclusive. Neither he nor the 1st Defendant and its officials know the source(s) and author(s) of the plaintiff's Exhibit 6.
Surprisingly, however, despite the 1st and 3rd Respondent's allegation in Paragraph 6(a) of the said counter affidavit that
Exhibit 6 "is fake, forged and fictitious", the Appellant glossed over this weighty allegation. There is no deposition in the Appellant's Further Affidavit addressing this weighty allegation of fact by the 1st and 3rd Respondent.
Secondly, the 1st and 3rd Respondents have equally averred in Paragraph 6(c) to the effect that:
(c) Messrs Michael George and Daniel Ekanem named in the plaintiff's Exhibit 6 were not the Electoral Officer and the Returning Officer respectively appointed by the 1st Defendant pursuant to Section 25(viii) of the PDP Guidelines for Primary Elections 2014 plaintiff's Exhibit 4 - in the subject primary Election.
Thus, by Paragraph 6(c) of the counter affidavit thereof, the 3rd Respondent has denied the identities of the purported Electoral Officer and Returning Officer alluded to in Exhibit 6 of the Appellant's affidavit.
Thirdly, Paragraph 25(vi) of the 1st Respondent's Guidelines (Appellant's Exhibit 4), is to the effect that-
vi. There shall be for each State of the Federation and FCT, a National Assembly Electoral Panel of five members (one chairman and four others) appointed by the National Executive Committee on there commendation of the National Working Committee of the Party.
In Paragraph 4(f) of the 3rd Respondent's counter affidavit, it was equally deposed thus:
(f) The National Assembly Electoral Panel for the conduct of the National Assembly Primary Elections in Akwa Ibom State (AKS NASS Electoral Panel) was chaired by Mr. Olatunbosun Osuntokun and made up of 4 (four) other members, all of who were appointed by the 1st Defendant's National Executive Committee (NEC) on the recommendation of its National Working Committee. See page 405 of the Record.
Ironically, however, the said deposition in Paragraph 4(f) of the 3rd Respondent's counter affidavit has not been denied by the Appellant in the Further Affidavit thereof. Thus, the said deposition is deemed admitted by the Appellant.
Again, in Paragraph 6(2) of the 3rd Respondent's counter affidavit, it is deposed that-
6. Further to Paragraphs 4 and 5, and in specific response to Paragraphs 12, 13, 15 and 16 of the AOS Supporting affidavit Mr. Osuntokun further informed me on the same date and in the circumstances aforestated and verily believe him to be truthful and honest that:...................................
(e) The Plaintiff herein was not present and did not participate at the 1st Defendant's primary for the Akwa Ibom State North East Senatorial District held on 07 December, 2014. See page 407 of the Records.
Instructively, under Paragraph 25(vii) of the 1st Respondent's Guidelines (Exhibit 4), it is provided that the Chairman of the National Assembly Electoral Panel shall be the Returning Officer of the National Assembly Primary Elections for the State and FCT. It is equally provided under Paragraph 2(viii) of the said Guidelines (Exhibit 4) that-
(viii) The National Assembly Electoral Panel shall appoint 4 Returning Officer for each House of Representatives and Senatorial Constituency and the Returning officers shall be deployed to Constituencies other than those of their origin...
Thus, against the backdrop of the foregoing depositions, denouncing the purported Returning officers (Exhibit 6), thereby labelling them as imposters, a substantial dispute of facts has been generated that cannot ideally be resolved by originating summons process. Arguably, the only viable means of resolving the disputes is by resorting to proper writ of summons process, thereby allowing the parties to file their respective pleadings and call witnesses.
In addition to Exhibit 6, the Appellant has equally posited that Exhibit 9 relates to the nomination of the candidates for Akwa Ibom North East Senatorial District. The said Exhibit 9 was alluded to in Paragraph 19 of the Amended originating summons thus:
19. That the Independent National commission as the agency saddled with conduct of general election has published the Atlas of Electoral Constituencies for Akwa Ibom State showing that the State has Akwa Ibom South as the only recognized, valid and legal Senatorial districts for Akwa Ibom State. The said Atlas of Electoral Constituencies is herewith attached and marked as Exhibit 9.See page 39 of the Record.
Remarkably, the said deposition in Paragraph 19 of the Appellant's Amended originating summons has been vehemently denied by the 3rd Respondent in Paragraph 4(c) of the counter affidavit thereof, to the effect that the deposition is either wholly untrue, represent complete distortions, and/or misrepresentation of facts, thus worthless and unreliable.
Again, the 3rd Respondent deposed in Paragraph 8(a), 8(b) and 8(c) of the said counter affidavit, to the following facts:
8(a) Akwa Ibom State from its creation comprises of three Senatorial districts, which are Uyo, Eket and Ikot Ekpene Senatorial Districts. These three Senatorial Districts are the same as Akwa Ibom North East Senatorial District, Akwa Ibom South Senatorial District and Akwa Ibom North West Senatorial District respectively.
8(b) The 1st Defendant is still using the names of Uyo, Eket and Ikot Ekpene Senatorial Districts in its official correspondence and Result Sheets for administrative convenience and to enable the Delegates identify the constituencies in which their Local Governments fall.
8(c) The Result Sheets for the NASS primaries conducted by the NASS Electoral panel in Akwa Ibom North East and South Senatorial Districts clearly show that the said Senatorial Districts are also referred to as Uyo and Eket Senatorial Districts respectively. Exhibit BAA 1 and the copy of the Result Sheets for Eket Senatorial District attached hereto and marked as Exhibits BAA 3 both bear this fact out.
It is obvious, from the above averments, that the 3rd Respondent has vehemently denied the Appellant's deposition in Paragraph 19 of the affidavit thereof. What is more, there is apparently nothing in Paragraph 19 of the Appellant's affidavit that backs up his assertion that those geographical names for the three Senatorial Districts in Akwa Ibom State are the only recognised, valid and legal names for the three Senatorial Districts in question. Exhibit 9 spans only three pages. However, the second page of Exhibit 9 bears 24 printed thereon, showing that these three pages are part of a larger and more complete document. Thus, it would be unimaginable, that the Court should base its determination of the suit merely on such an incomplete document, as Exhibit 9 apparently is.
As alluded to above, it is obvious from the records, that the substantial issues of facts inherent in the processes of the respective parties in question cannot effectively and properly be resolved without pleadings and full trial, which can only meaningfully be fostered vide a writ of summons process. As aptly postulated by the Respondents, the genuineness or otherwise of Exhibits 6 and 9 of the Appellants i.e. whether they are indeed not fake or forged documents, is very much in issue. And this fundamental issue cannot be determined merely through interpretation or construction of the processes in question. The instant case, as rightly postulated by the Respondents, is a classic instance where originating summons procedure is grossly inadequate for the determination or resolution of the issues in dispute. See OSSAI v. WAUWAH (2006) 4 NWLR (PT. 969) 208 @ 227-228 Paragraphs H - D; OLLEY v. TUNJI (2013) 10 NWLR (PT. 1362) 275 @ 327 Paragraphs A - F; EZEAKU v. OKONKWO (2012) 4 NWLR (PT.1291) 529 @ 547 - 548.
In the circumstance, I have no hesitation in resolving the sole issue against the Appellant.
Hence, having resolved the sole issue against the Appellant, there is no gain-saying the fact, that the instant appeal is grossly unmeritorious. Consequently, the appeal is hereby dismissed by me.
The ruling of the Federal High Court, delivered at Uyo on May 20, 2015 by Ijeoma Ojukwu, J; is hereby affirmed.
The 1st and 3rd Respondents shall be entitled to N50,000.00 as costs against the Appellant.
I had the privilege of reading in advance a draft copy of the Judgment just delivered by my learned Brother, I.M.M. Saulawa, JCA, dismissing this appeal. The issues raised in this appeal have been comprehensively addressed. I am in agreement with his reasoning and conclusion, which I adopt as mine. I will only make few comments for emphasis.
In actions commenced by originating summons, only affidavit evidence is employed. But where there is likely to be substantial dispute of facts, or, where the relief or reliefs sought by a claimant are declaratory in nature, the action must be brought by writ of summons, the facts being in dispute. The reason simply is because justice demands that where the complaint of a claimant makes allegations against a defendant, there ought to be oral evidence. This would provide opportunity for the defendant to cross-examine witnesses testifying against him and in turn for him to testify in his own defence. In Oba Osunbade v. Oba Oyewunmi 30 NSCQR 434 at 449, the Supreme Court per Ogbuagu, JSC said:
"It is now firmly settled that an Originating Summons, is an unusual method of commencing proceedings in the High Court and it is confined to cases where special statutory provisions exist for its application. It is not advisable, to make use of this procedure for hostile proceedings where the facts are in dispute as in the instant case leading to this appeal."
See also: Famfa Oil Limited v. Attorney-General of the Federation (2003) 18 NWLR (Pt. 852) 453 at 467; Inakoju v. Adeleke (2007) 2 MJSC 1; FGN v. Zebra Energy (Nig.) Limited (2003) 1 MJSC 3.
There is no doubt that it is not in all cases where there is conflicting affidavit evidence that originating summons cannot be employed. Where there exists documentary evidence upon which the Court may ground its decision, the matter may be heard and determined on such evidence; Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 688. But, in the instant appeal, an examination of the affidavit evidence will reveal that there are matters in controversy that even the documents annexed thereto will not easily resolve. These are not issues that can fairly and judiciously be determined without recourse to oral evidence. The originating procedure employed does not permit a comprehensive ventilation of the matters in controversy in order to ensure justice for all the parties.
For these reasons and for the fuller reasons given in the lead Judgment, this appeal is also dismissed by me, being unmeritorious. I also affirm the ruling of the Federal High Court, Coram Ijeoma Ojukwu, J; and abide by the orders made in the lead Judgment, including the order as to costs.
PAUL OBI ELECHI, J.C.A.: I agree.
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