IN THE COURT OF APPEAL OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
ON WEDNESDAY, THE 4TH DAY OF JANUARY, 2023
BEFORE THEIR LORDSHIPS:
RDWAN MAIWADA ABDULLAHI JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL
ISAH BATURE GAFAI JUSTICE, COURT OF APPEAL
APPEAL NO. CA/G/203/2022
BETWEEN:
PEOPLES DEMOCRATIC PARTY (PDP) ======= APPELLANT
AND
1. ABDULLAHI IDRIS
2. INDEPENDENT NATIONAL ELECTORAL ==== RESPONDENTS
COMMISSION (INEC)
JUDGMENT
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
By an Amended Originating Summons filed on 19/09/2022 before the Federal High Court, Damaturu, Yobe State, (the lower court), the 1st Respondent, as plaintiff, sought the reliefs set out hereunder:
The Appellant and the 2nd Respondent were the Defendants to the Amended Originating Summons. In the Originating Summons earlier filed on 27/07/2022, one Mohammed M. Bukar together with the Appellant herein and the 2nd Respondent were the original 1st, 2nd and 3rd Defendants before the amendment, which was necessitated by the demise of the original 1st Defendant.
The facts of the case leading to this appeal are amenable to easy comprehension. I will briefly sketch it as follows: The 1st Respondent was selected in the Appellant’s (PDP) primary election, in which he was the sole aspirant, as the candidate of the Appellant in the 2023 general election for Gujba, Gulani, Tarmuwa and Damaturu Federal Constituency, Yobe State. He was issued a Certificate of Return by the Appellant and his name was forwarded by the Appellant to the 2nd Respondent (Independent National Electoral Commission) as the nominated candidate of the Appellant. He filled in the nomination form and the 2nd Respondent published his name as the candidate of the Appellant. On inquiry at the Headquarters of the 2nd Respondent on 25/07/2022, the 1st Respondent was told that his name was substituted on 15/07/2022 by that of one Muhammed M. Bukar. He wrote a protest letter to the Appellant, the 2nd Respondent and the Resident Electoral Commissioner, Yobe State, protesting the withdrawal of his name because he has at no time relinquished his candidature to the said Muhammed M. Bukar or anyone else. There was no proceeding or hearing conducted by the Appellant in respect of the complaint of the 1st Respondent to ascertain whether or not he authorized the substitution of his name as candidate of the Appellant. While the original action was pending, the said Muhammad M. Bukar, who was the 1st Defendant in the original action passed away, hence the removal of his name on the Amended Originating Summons, leaving only the Appellant and the 2nd Respondent.
In the counter affidavit filed on behalf of the Appellant, it was deposed that the 1st Respondent withdrew his nomination on his own volition vide a letter written by him to the Yobe State Chairman of the Peoples Democratic Party dated 13/07/2022. The letter followed a Memorandum of Understanding between the 1st Respondent and Muhammed M. Bukar also dated 13/07/2022 wherein the 1st Respondent agreed to withdraw his nomination if his campaign expenses would be refunded. Muhammed M. Bukar agreed to and did refund the sum of Five Million naira to the 1st Respondent through the Account of his friend, Salisu Ibrahim, which he provided. That the 1st Respondent deposed to an affidavit in support of his notice of withdrawal before the High Court of Yobe State. Consequently, the Appellant sent a notice to the 2nd Respondent informing it of its bye election scheduled for 14/07/2022. At the bye election held on 15/07/2022, Muhammed M. Bukar, being the sole aspirant, was selected as the candidate of the Appellant and he filled and returned the nomination form to the 2nd Respondent. The Appellant filed along with its counter affidavit in opposition to the Originating Summons, a Notice of Preliminary Objection seeking the striking out of the suit for being incurably defective and fatally incompetent.
The lower court heard the preliminary objection together with the substantive suit and in a considered judgment delivered on 26/10/2022, dismissed the preliminary objection and entered judgment for the 1st Respondent in the following terms:
“In the final analysis, the Plaintiff has successfully proved his case on the preponderance of evidence. Consequently, the Plaintiff is hereby declared the validly nominated candidate of the 1st Defendant for the election having emerged winner of the earlier conducted primary election. Accordingly, this Hon. Court holds that the Plaintiff remains the validly nominated candidate of the 1st Defendant for the Gujba, Gulani, Tarmuwa and Damaturu Federal Constituency of Yobe State in the forthcoming 2023 General Elections. In the same vein, the primary election of 15th July, 2022 having no basis in law, is hereby declared null, void and of no effect together with its outcome. The 1st Defendant is hereby ordered to present the name and details of the Plaintiff to the 2nd Defendant as its rightful candidate.”
Peeved by this decision, the Appellant approached this court with its Notice of Appeal dated and filed 07/11/2022, anchored on seven (7) grounds of appeal. Appellant’s Brief of Argument in which three issues were distilled for determination was filed on 18/11/2022 and adopted by J.J. Usman, SAN, leading Isiaka Kadiri, C.O. Ogbu and I.Q. Abbey, on 24/12/2022, when the appeal was argued. 1st Respondent’s Brief of Argument, settled by M.N. Sadauki, Esq, led by Y.M. Liman, Esq, wherein the issues formulated in the Appellant’s Brief was adopted, was filed on 25/11/2022 and adopted by Y.M. Liman, Esq, with Mustapha Muhammad, Esq on 24/12/2022, when the appeal came up for hearing. The 2nd Respondent did not respond to the appeal by way of filing a Brief of Argument, just as it did at the lower court. A Reply Brief was also filed by the Appellant which was equally adopted. The issues formulated by the Appellant and adopted by the 1st Respondent, are:
Appellant’s Argument.
The submission of learned senior counsel for the Appellant on issue 1 can be summarized thus: That the Originating Summons issued at Damaturu, Yobe State, and served on the Appellant and the 2nd Respondent at Abuja, Federal Capital Territory, does not have an endorsement thereon that it was to be served in Abuja outside the State/place of issue as mandated by section 97 of the Sheriffs and Civil Process Act, which renders it incompetent as due process was not followed in initiating the suit, and that the incompetence robs the court of the jurisdiction to entertain the matter. This is the meat, the substance, the foundation and the fulcrum of all the 13-page argument on this issue in the Appellant’s Brief. On the effect of failure to comply with the provision of section 97 of the Sheriffs and Civil Process Act, learned senior counsel placed reliance on Madukolu vs. Nkemdilim (1962) N.S.C.C Vol. 2 page 374 @ 379; Owners of MV “Arabella” vs. Nigeria Agricultural Insurance Corporation (2008) ALL FWLR (Pt.443) 1208 @ 1228-1230; D.E.N.R Ltd vs. Trans International Bank Ltd (2009) ALL FWLR (Pt.456) 1823 @ 1850-1852; PDP vs. INEC (2018) LPELR-44373 (SC); Izeze vs. INEC (2018) LPELR-44284 (SC); Agip (Nig) Ltd vs. Agip Petroleum International & Ors (2010) 5 NWLR (Pt. 1187) 348 (SC); Omajali vs. David (2019) 17 NWLR (Pt.1702) 438 @ 457-458; Fayemi vs. Oni (2020) 8 NWLR (Pt.1726) 222 @ 230-231; Unreported decision of this Court in Appeal No. CA/ABJ/CV/1005/2022 between Hon. Olobatoke Segun Samule vs. All Progressives Congress (APC & Ors, delivered on 10/11/2022; Kida vs. Ogunmola (2006) ALL FWLR (Pt.327) 402 (SC).
Learned senior counsel further argued that the lower court misunderstood the Appellant’s case to mean that leave ought to be obtained before service of the originating summons, hence its heavy reliance on Order 6 Rule 31 of the Federal High Court (Civil Procedure) Rules, 2019, and its holding at page 763 of the Record, lines 14-16, thereby falling into grave error. He submitted that it is also on this wrong premise that the lower court relied heavily on the cases of SPDC Nig Ltd vs. Nwagbara (2018) LPELR-43732 (CA); CBN vs. Interstella Communications Ltd & Ors (2015) 8 NWLR (Pt.1462) 399; Boko vs Nungwa (2019) ALL FWLR (Pt.1000) 617, and a host of others. It was submitted that the trial court’s finding that section 97 of the Sheriffs and Civil Process Act does not apply to originating process issued at the Federal High Court for service within Nigeria, was misconceived and a gross disobedience to the decisions of the apex court. That the 1st Respondent misconceived the Appellant’s contention on endorsement and continued to argue issue of service outside jurisdiction. Senior counsel maintained that the Sheriff and Civil Process Act did not make provision for leave to serve originating process outside jurisdiction, rather, it provides for endorsement to be made on an originating process that is to be served outside the State in which it was issued. He further submitted that assuming the case of Boko vs. Nungwa (supra) is applicable to this case, reliance on it is non sequitur in view of the latter decisions of the apex court in Omajali vs. David (supra) and Fayemi vs. Oni (supra), which represents the current state of the law and therefore should be preferred. The court was urged to resolve this issue in favour of the Appellant.
Issue 2 challenges the propriety of commencing the action at the lower court by way of Originating Summons when there are violent conflicts as to facts, coupled with allegation of forgery, which makes the calling of oral evidence inevitable. Learned senior counsel for the Appellant submitted that where the facts of a case are hostile or substantially in conflict in affidavits of the parties, such a case cannot be determined on affidavit evidence, the court owe a duty to call for oral evidence whether applied for by the parties or not, relying on Chairman, NPC vs. Chairman, Ikere L.G. (2001) 13 NWLR (*Pt.731)540 @ 558-559. After restating the facts of the case, especially the areas in dispute in the competing opposing affidavits and the 1st Respondent’s further affidavit on the dispute as to whether the 1st Respondent withdrew his candidature after being nominated as the candidate of the Appellant via an affidavit sworn to before the High Court of Yobe State, Damaturu, and a letter written to the Appellant; and whether the 1st Respondent collected a refund of Five Million Naira through the account of his friend Salisu Ibrahim being for sundry expenses incurred by him, which were all vehemently denied by the 1st Respondent, learned senior counsel contended that these conflicting facts can only be resolved via oral evidence and not by affidavits. On the allegation of forgery made in the further affidavit of the 1st Respondent, counsel submitted that where there are allegations of crime, originating summons is not the proper procedure to commence an action, citing Agi vs. PDP (2017) 17 NWLR (Pt.1595) 368 @ 469-470; APC vs. Elebeke & Ors (2022) 20 NWLR (Pt.1837) 1 @ 33-34; Unreported decision of the Supreme Court in Appeal No. SC/CV/1132/2022 between David Edevie vs. Oborevwori Sheriff Francis Orohwedor & 2 Ors delivered on 21/10/2022. He urged the court to hold that the lower court was wrong to have heard and determined the suit on Originating Summons and to proceed to resolve this issue in favour of the Appellant.
The 3rd issue touches on whether the case of the 1st Respondent before the lower court was proved on preponderance of evidence. Senior counsel contended that it is the duty of a Plaintiff in civil suit to prove his case on the balance of probabilities and that it is only when he has done so that the burden of proof will shift to the Defendant. That where a Plaintiff fails to discharge this burden then the Defendant need not prove any fact and the party alleging cannot rely on the weakness of the opponent’s case, particularly in a declaratory action such as this. Counsel called in aid the following cases – Agbi vs. ogbeh (2006) 11 NWLR (Pt.990) 65; Alhaji Otaru & Sons Ltd vs. Idris (1999) 6 NWLR (Pt.606) 330 @ 342; Imam vs. Sheriff (2005) 5 NWLR (Pt. 914) 80 @ 186-187; Maja vs. Samouris (2002) NWLR (Pt.765) 78 @ 100-101; Babatola vs. Adewumi (2011) LPELR-3945 (CA). He submitted that the 1st Respondent has failed to prove his assertion in his affidavit that he has not withdrawn his candidature in the face of exhibits C, D, E and F annexed to the Appellant’s counter affidavit which are the memorandum of understanding duly signed by the 1st Respondent, his letter of withdrawal, the affidavit of withdrawal and the affidavit of Salisu Ibrahim stating that he received the sum of Five Million Naira on behalf of the 1st Respondent. Counsel argued that on the basis of this evidence, it is clear that the 1st Respondent has voluntarily withdrawn his candidature, an action which is recognized by section 31 of the Electoral Act. It was argued that instead of the lower court to compare the 1st Respondent’s signature on exhibits C, D and E with another independent signature of his, as required by section101 (1) of the Evidence Act, it wrongly compared the signatures on the said exhibits C, D and E with one another and decided that the signatures were dissimilar without pointing at the areas of the purported dissimilarity. Learned senior counsel further submitted that the 1st Respondent alleged the forgery of his signature on exhibits C, D and E, which allegation has been strengthened by the trial Judge when he held that the signatures on exhibits C, D and E annexed to the Appellant’s counter affidavit were all made in an attempt to imitate the signature of the 1st Respondent. It was contended that this criminal allegation, though made in a civil proceeding, require proof beyond reasonable doubt, which burden was not discharged by the 1st Respondent, citing Emmanuel vs. Umana & Ors (2016) LPELR-40037 (SC) @ 17-18. The court was urged to resolve this issue in favour of the Appellant, and to proceed to allow the appeal.
Argument of the 1st Respondent.
Learned counsel for the 1st Respondent submitted on issue 1 that the Appellant has failed to show how the lower court was in error in its judgment and how he suffered injustice as a result. It was the argument of counsel that section 97 of the Sheriffs and Civil Process Act, indeed the whole Act, did not apply to the Federal High Court where the parties are domiciled in Nigeria. That the phrase “out of Jurisdiction” within the ambit of the Federal High Court means outside Nigeria because the Federal High Court is one court with judicial divisions for administrative convenience. That the case of Owners of MV Arabella vs. NAIC (supra); Izeze vs. INEC (supra) and PDP vs. INEC & Ors (supra), relied upon by the Appellant, are no longer applicable to the Federal High Court. Learned counsel submitted that the entire argument canvassed by the Appellant on this issue are contrary to the current position of the law as it relates to the applicability of section 97 of the Sheriffs and Civil Process Act on matters instituted at the Federal High Court where all the parties reside within Nigeria, citing SDP vs. Biem (2019) 12 NWLR (Pt.1687) and Boko vs. Nungwa (supra), as representing the current state of the law. In the case of Boko vs. Nungwa (supa), the Supreme Court stated inter alia; that the Federal High Court does not come within the ambit of sections 94 and 96 (2) of the Sheriffs and Civil Process Act, and also that the Federal High Court was not contemplated by the lawmakers when the Act was enacted. Counsel urged the court to hold that the provision of section 97 of the Sheriffs and Civil Process Act does not apply to this case.
On the submission by the Appellant that the cases of Omajali vs. David (supra) and Fayemi vs. Oni (supra) represents the current state of the law on the applicability of section 97 of the Sheriff and Civil Process Act to the Federal High Court, learned counsel submitted that both cases do not decide the issue of endorsement of Originating Summons for service outside the state of issue, rather, Omajali’s case decided on if section 97 of the Sheriff and Civil Process Act provides that leave of court must be sought before serving originating process from one State to another, while the case of Fayemi was decided on 17/04/2019 not in 2020 as argued by the Appellant. Further that the case of Fayemi decided on whether the Appellant was estopped from relying on section 97 of the Sheriffs and Civil Process Act after changing the address for service from Ekiti to Abuja. That the most recent decision of the Supreme Court on the applicability of section 97 of the Sheriff and Civil Process Act to the Federal High Court, is the case of SDP vs. Biem (supra). The court was urged to overrule the Appellant’s submission on this issue and resolve same in favour of the 1st Respondent.
On issue 2, relying on the decisions of this court in Jimoh vs. Aleshinloye II & Ors (2014) LPELR-22552 (CA) and Jacob vs. Eton (2020) LPELR-49577 (CA), learned counsel submitted that in determining whether the facts in support of an Originating Summons are contentious or hostile, it is the nature of the claim and the facts deposed to in the affidavit in support of the claims that shall be examined to see if they disclosed disputed facts and a hostile nature of the proceedings. He submitted that it is not the filing of a counter affidavit that determines if the facts are hostile, citing Davies & Anor vs. Onojobi & Ors (2021) LPELR-56266 (CA). it was argued that the facts in support of the 1st Respondent’s Originating Summons as deposed to in his affidavit and the reliefs sought are straight forward, devoid of any contentious matter or allegation of forgery or any crime at all. That the Appellant, having admitted that the 1st Respondent was nominated as its candidate for the election in question, the duty of proving that the 1st Respondent withdrew his candidature squarely rests on the Appellant. After a recap of the facts in the opposing affidavits of parties, learned counsel submitted that where the dispute between the parties can be reconciled by the use of affidavit evidence and the documents attached, the court is perfectly positioned to determine the case without calling for oral evidence, relying on Mohammed & Ors vs. Success & Ors (2020) LPELR-50276 (CA). He further submitted that in determining whether the signatures on exhibits C, D and E belonged to the 1st Respondent, oral evidence is not required in view of the provision of section 101 (1) of the Evidence Act which provides for comparison of signatures by the trial Judge. On the allegation of forgery, learned counsel submitted that the allegation was made in response to the depositions in the Appellant’s counter affidavit and was not denied by the Appellant, and therefore deemed admitted, requiring no further proof. Reliance was placed on Anyalewechi vs. Lufthansa German Airlines (2021) LPELR-55213 (CA) in urging the court to resolve this issue in favour of the 1st Respondent.
Learned counsel argued on the 3rd issue that contrary to section 31 of the Electoral Act, no attempt was made by the Appellant who alleged that the 1st Respondent withdrew his candidature to prove that he delivered the letter of withdrawal personally to the Appellant as required by the said section 31. That being a corporate entity, every letter received by the Appellant must bear its receipt stamp and the date it was received which is not the case with exhibit D annexed to the Appellant’s counter affidavit, relying on Adis (Nig) Ltd vs. Great Nig. Ins. Co Ltd (2000) LPELR-10365 (CA). Counsel submitted that all letters attached to the various processes as having been submitted or received by any of the parties to this appeal carry receipt stamp on them, except exhibit D. Other than the above, further submissions on this issue turned out to arguments that were earlier canvassed under issue 2.
Resolution of the appeal
In resolving the issues in this appeal, I will treat issue 1 separately after which I will treat issues 2 and 3 together because of their interrelatedness with respect to the issue of proof.
Before then, I need to express my agreement with the submission of learned counsel for the 1st Respondent that the Appellant’s Reply Brief filed on 28/11/2022 is incompetent and invalid, having exceeded the maximum number of pages that a Reply Brief should contain as provided for in paragraph 14 (a) (c) of the Election Judicial Proceedings Practice Directions, 2022. The said Reply Brief, being 18 pages, is hereby discountenanced and struck out, having overshot the maximum limit.
Section 97 of the Sheriffs and Civil Process Act, CAP S6, Laws of the Federation of Nigeria, 2004, provides:
Every writ of summons for service under this Part 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 (that is to say)- [L.N. 47 of 1955.] "This summons (or as the case may be) is to be served out of the...................... State (or as the case may be)..................... and in the.......................State (or as the case may be)."
For an originating process for service outside jurisdiction to be effectively and competently issued and served, there must be an endorsement thereon to the effect that the originating process is for service outside the jurisdiction of the court issuing the said process. This is what section 97 of the Sheriffs and Civil Process Act is all about, and compliance with the said provision is a condition precedent to the competence and validity of any originating process for service outside jurisdiction. The validity of originating process in a proceeding, like the Originating Summons, Writ of Summons or Notice of Appeal, is a sine qua non for the competence of the proceeding that follows or that is initiated by such process. See Kente vs. Ishaku & Ors (2017) LPELR-42077 (SC). It has been held that failure to endorse an originating process meant for service outside jurisdiction as such, is a fundamental defect with fatal consequences of incompetence of the originating process, thereby robbing the court of jurisdiction to hear the case. See PDP vs. INEC & Ors (2018 LPELR-44373 (SC)). In Izeze vs. INEC & Ors (2018) LPELR-44284 (SC), cited by learned counsel for the Appellant, the Apex Court held inter alia;
“Once the claimant fails to comply with the mandatory provision in section 97 supra, the court would no longer have jurisdiction to adjudicate on the suit. It is fundamental that the claimant obeys and comply with the provision.”
Upon a careful examination of the Amended Originating Summons filed by the Appellant at the lower court, I found that the addresses for service of the 1st and 2nd Respondents was stated to be in Abuja. It is also a fact that they were served in Abuja, even though there was no endorsement on the originating process that it was to be served outside Yobe State, where it was issued by the Federal High Court, Damaturu. On the basis of the authorities cited above, the Amended Originating Summons ought to be pronounced incompetent in view of the absence of the required endorsement. The issue in contention in this appeal, however, has been narrowed down to whether section 97 of the Sheriffs and Civil Process Act and indeed the entire Act, is applicable to the Federal High Court. While learned senior counsel for the Appellant maintained that the Act applies both to the State and Federal High Courts, learned counsel for the 1st Respondent argued that the Act applies only to the High Court of the States and the FCT. Both counsel cited judicial authorities in support of their respective positions. In determining whether the provision of section 97 of the Sheriff and Civil Process Act applies to the Federal High Court, I shall start by taking a detour into the provision of the Act itself. Below is the title of the Act:
“An Act to make provision for the appointment and duties of Sheriffs, the enforcement of judgments and orders, and the service and execution of civil process of the Courts throughout Nigeria.”
From this title, one can conclude that the Act applies to all courts in Nigeria. However, the actual provisions of the Act seem to restrict the application of the Act only to the High Courts of the States and the Federal Capital Territory. A sample of the provisions will suffice –
From the words used in those sections, one can safely conclude that Federal High Court was not envisaged in the application of the Sheriffs and Civil Process Act. However, my personal views apart, I must kowtow and bow to the superior views of the Supreme Court on the narrow question of whether the provisions of the Act, particularly section 97 thereof concerning endorsement of originating process for service outside the State of issue, applies to the Federal High Court or not. I shall now examine some decisions in that regard, starting with cases relied upon by the Appellant.
"I shall consider whether there was compliance with Section 97 of the Sheriff and Civil Process Act. If there was non-compliance, that would bring the hearing of this appeal to an end. Section 97 of the Sheriff and Civil Process Act states that: "Every writ of summons for service under this part out of the State or the Capital Territory 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 (or 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)." Where the words used in a statute are clear and unambiguous they must be given their ordinary meaning. See Mobil v FBIR (1977) 3SC p53, Toriola v. Williams (1982) 7 SC P. 27. It is so obvious after reading, Section 97 of the Sheriff and Civil Process Act that it is couched in mandatory terms. It is abundantly clear that any service of a writ without the proper endorsement as stipulated by Section 97 supra, is not a mere irregularity but is a fundamental defect that renders the writ incompetent. There can be no doubt whatsoever that by virtue of Section 97 of the Sheriffs and Civil Process Act, every writ of summons (or originating process) for service out of the State in which it was issued must, in addition to any endorsement of notice required have endorsed on it, a notice indicating, that the summons is to be served out of the State and in which State it is to be settled. Once again failure to endorse the required notice on an originating process for service outside a State where it was issued is not a mere irregularity but a fundamental defect that renders the originating process incompetent. A Court would be deprived of jurisdiction to hear the case if satisfied that there is non-compliance with Section 97 of the Sheriffs and Civil Process Act.”
When the words used in Section 97 of the Sheriff and Civil Process Act are given their ordinary plain meaning without embellishments, it becomes very clear that the provision is mandatory. Service of an originating process without the endorsement as clearly stated under Section 97 supra is not an irregularity. It is a fundamental defect which renders the originating process void. See Adegoke Motors Ltd v Adesanya & Anor (1989) 20 NSCC (Pt.II) p.327. Nwabueze & Anor v. Justice Obi Okoye (1988) 19 NSCC (Pt. III) p.53. Skenconsult (Nig) Ltd v Ukey (1981) 12 NSCC P1. Under Section 97 of the Sheriff and Civil Process Act, if an originating process for service out of jurisdiction does not have the endorsement: This summons (or as the case may be) is to be served out of the .. ....state (as the case may be).... and in the ................state (or as the case may be)." Such an originating summons is invalid. It is clear that Section 97 of the Sheriff and Civil Process Act is couched in mandatory terms. The Courts would have no discretion under Section 97 of the Sheriffs and Civil Process Act. Once the claimant fails to comply with the mandatory provision in Section 97 supra the Court would no longer have jurisdiction to adjudtcate on the suit. It is fundamental that the claimant obeys and comply with the provision.”
“The issue of leave raised in connection with section 97 of the Sheriffs and Civil Process Act is strange to the provision and the court is enjoined to avoid introducing strange words into statutes, when charged with the responsibility of interpreting such statutes. The authorities cited by learned counsel on this score are not helpful.”
The ratio decidendi of this case, therefore, is that leave is not required to serve process emanating from the Federal High Court on any person anywhere in Nigeria. Reference to section 97 of the Sheriff and Civil Process Act in the judgment of the Supreme Court was a statement by the way, an obiter dictum, and should be regarded as such.
Therefore, among the cases relied upon by the Appellant, only Nos, 1, 2, 3 above decided on the effect of non-compliance with section 97 of the Sheriffs and Civil process Act. Of this number, while No. 1 was decided in the year 2008, Nos. 2 & 3 were decided the same date, i.e., 13/04/2018. On the other hand, Nos. 4 & 5 above, i.e., the cases of Omajali and Fayemi decided in 2019, are inapplicable to the instant appeal as the issues decided therein are not the same with the issue in contention in the instant appeal.
I shall now examine the cases cited and relied upon by counsel to the 1st Respondent, in support of his contention that the Sheriffs and Civil Process Act does not apply to the Federal High Court, having not been listed therein.
“The power vested in the Chief Judge of the Federal High Court to make rules of court are not derived from the Sheriffs and Civil Process Act but from sections 254 of the Constitution and 44 of the Federal High Court Act.” His Lordship further held thus: “I am of the considered view that the originating summons issued by the Federal High Court, Makurdi, which is to be served in Abuja cannot be considered to be service outside the jurisdiction and therefore does not require to be endorsed as a concurrent writ…”
"On the first and second questions, the cases of AKEREDOLU VS. ABRAHAM (2018) 10 NWLR (pt. 1628) 510 at 536; BIEM VS. SDP 12 NWLR (pt. 1687) 377 at pp. 405 - 406; BOKO VS. NUNGWA (2019) ALL FWLR (PT. 1000) 617 at 679 - 685 AND OMAJALI VS. DAVID (2019) 17 NWLR (pt. 1702) 439 at p. 459 have jointly and severally settled any lingering doubts as to the fact that the words "out of jurisdiction" in the ambit of the Federal High Court Rules means "out of the Federal Republic of Nigeria." He further stated in the judgment:
"Second, and as rightly pointed out by the learned counsel for the 3rd - 6th Cross-Respondents, the same set of aforementioned cases especially the decision of Mary Odili JSC in BOKO VS. NUNGWA (2019) ALL FWLR (pt. 1000) 617 pp. 679 - 685 and later that of AKAAH'S JSC IN BIEM VS. SDP (2019) 12 NWLR (pt. 1687) 377 at 405 - 406 have settled the earlier misgivings in earlier decisions in cases such as OWNERS OF THE MV. ARABELLA VS. NAIC (2008) LPELR - 2848; IZEZE VS. INEC (2018) 11 NWLR (pt. 1629) 110 and have come out boldly to say that in fact the provisions of Sections 96 and 97 of the Sheriffs and Civil Process Act are not applicable to the Federal High Court.”
The implication of these three decisions relied on by the 1st Respondent, especially, the decisions of the Supreme Court in Boko vs. Nungwa (supra) and Biem vs SDP (supra), is that sections 96 and 97 of the Sheriffs and Civil Process Act are not applicable to the Federal High Court. These decisions have run contrary to the earlier position taken by the same Court in April, 2018, in the cases of PDP vs. INEC & Ors (supra) and Izeze vs. INEC (supra), where it was held that non-compliance with section 97 of the Sheriffs and Civil Process Act renders an originating process from the Federal High Court for service outside the State of issue, incompetent and divested the court of jurisdiction to entertain the matter. On the principle of stare decisis as to which of two conflicting decisions of the Supreme Court this court should follow as laid down in the cases of Adegoke Motors Ltd vs. Adesanya & Anor (1989) LPELR-94 (SC); Osakue vs. Federal College of Education (Technical) Asaba & Ors (2010) 10 NWLR (Pt.1201) 1; Osunde vs. Azodo (2017) 15 NWLR (Pt.1588) 21, this court is bound to follow and apply the latter decisions in Boko vs. Nungwa (supra) and Biem vs. SDP (supra), which, incidentally, coincides with the personal views I expressed earlier in this judgment. In the circumstances of this finding, I resolve issue 1 in favour of the 1st Respondent by holding that the lower court was right when it held that the Originating Summons was competent despite failure by the 1st Respondent to comply with the provisions of section 97 of the Sheriffs and Civil Process Act.
On issues 2 & 3
Originating Summons is one of the four ways of commencing actions in the Federal High Court. The method is geared towards expeditious determination of the cause of the parties where the facts are non-contentious. Originating Summons procedure is best suited for pre-election cases where time is of paramount importance. However, despite the need for expeditious hearing and disposal of election-related matters, where the facts of the case are likely to be in dispute or hostile and cannot be determined on affidavits, Originating Summons should not be resorted to, and where resorted to, parties should be ordered to file pleadings and prove their case through viva voce evidence. In other words, where it is evident from the affidavit evidence before the court that there would be friction in the proceedings, an Originating Summons is no longer appropriate. Originating Summons is usually heard on documents whose existence are not in dispute and it involves questions of law rather than disputed issues of fact. In the lucid words of Rhodes-Vivour, JSC, in Eze vs. University of Jos (2017) LPELR-42345 (SC);
"Originating Summons is one of the ways of commencing an action. In such an action, pleadings are not filed. Affidavit takes the place of pleadings. Reliance is placed on affidavits and facts are not in dispute. Originating Summons are thus not suitable for hostile proceedings where the facts are seriously in dispute. So once a suit has been filed by Originating Summons and it becomes obvious that facts are in dispute or the proceedings are likely to be hostile a Writ of Summons would be ordered. Originating Summons can be used in matters that involve interpretation of documents, Statutes, contract etc and it is by no means a procedure to enlarge the jurisdiction of the Court. The striking aspect of suits commenced by Originating Summons is that there are no pleadings or witnesses, and so proceedings are simple and concluded quickly. See Pam v. Mohammed (2008) 5-6 SC (pt. 1) P.83 Osunbade v. Oyewunmi (2007) 4-5 SC p.98."
See also Zakirai vs. Mohammed & Ors (2017) LPELR-42349 (SC); Inakoju & Ors vs. Adeleke & Ors (2007) LPELR-1510 (SC); Dapianlong vs. Dariye (2007) LPELR- Jev & Anor vs. Iyortyom & Ors (2014) LPELR-23000 (SC); Uba vs. Moghalu & Ors (2022) LPELR-57876 (SC).
There is no dispute between the parties that the 1st Respondent was affirmed as winner of the Appellant’s primary election for Gujba, Gulani, Tarmuwa and Damaturu Federal Constituency of Yobe State for the 2023 House of Representatives election. The parties are also at one that he was issued with a Certificate of Return, consequent upon which he filled and submitted INEC nomination form. Subsequently, his name was published by INEC. There is similarly no dispute that the name of the 1st Respondent was substituted with that of one Muhammed M. Bukar (now deceased). A look at the reliefs claimed in the Originating Summons (pages 470 – 517 of the Record of Appeal, particularly @ 471, Volume 2), clearly reveal that they are all targeted at remedying the substitution of the 1st Respondent by the Appellant. The facts deposed to in the affidavit in support of the Amended Originating Summons merely recapped these events. The only area of disagreement is whether the 1st Respondent authored any letter withdrawing his candidacy along with a sworn affidavit and memorandum of understanding between him and Muhammed M. Bukar, which were all annexed to the Appellant’s counter affidavit as exhibits C, D and E. Up to this point, i.e., the point of filing the counter affidavit, there is no hostility in the facts of the case, as the dispute has been narrowed down to the authorship of exhibits C, D and E. At that point, the dispute in the facts could have been easily resolvable by the lower court by looking at other documents attached to the affidavit and counter affidavit. But the dimension of the dispute between the parties was exacerbated by the filing of a further affidavit by the 1st Respondent wherein he denied signing exhibits C, D and E. The 1st Respondent did not stop at just denying signing the exhibits aforesaid, he also deposed at paragraph 10 of his further affidavit, at page 704 of the Record, that:
“In response to paragraphs 12, 13 and 14 of the 1st Defendant’s counter affidavit, the Memorandum of Understanding, Letter of Withdrawal and Affidavit in Support of Notice of Withdrawal were all fraudulently concocted by the late Muhammed M. Bukar and the 1st Defendant and attributed to me in order to take away my lawful mandate to contest for the upcoming 2023 general elections.”
An allegation of crime is thus manifest in this paragraph of the further affidavit. Allegation of fraudulent concoction of a signature whose authorship has been denied is an allegation of concocting the signature fraudulently. In other words, it is an allegation of forgery of the 1st Respondent’s signature by the late Muhammed M. Bukar and the 1st Defendant, the Appellant in this appeal. This allegation has no doubt introduced hostility and serious dispute into the matter, the type of dispute that is difficult, if not impossible, to substantiate by way of affidavit evidence. In coming to this conclusion, I take into consideration the settled position of the law that in determining the jurisdiction of a court it is the Plaintiff’s case, as made out in his pleading, that the court should look at. Under the Originating Summons Procedure, the Plaintiff’s affidavit represents the pleading, and this includes his further affidavit, as both the main affidavit and the further affidavit constitute the entire pleading or case of the Plaintiff. Contrary to the argument of learned counsel to the 1st Respondent, the further affidavit cannot be jettisoned in determining the case of the 1st Respondent because it is part and parcel of his pleading under the Originating Summons procedure. With the introduction of allegation of crime of forgery of the 1st Respondent’s signature through the 1st Respondent’s further affidavit, the question is whether such allegation can be proved by affidavit evidence. In answering this question, my first port of call will be the Evidence Act, 2011, where it provides in section 135, thus:
(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
The standard of proving the commission of forgery by the late Muhammed M. Bukar and the Appellant, as alleged by the 1st Respondent in his further affidavit, is beyond reasonable doubt, not on the balance of probability. Now, the dispute between the parties to this appeal is not merely on the construction and interpretation of any statute or documents, it is a dispute as to the existence or non-existence of facts, i.e., whether the 1st Respondent wrote and signed the memorandum of understanding, the letter of withdrawal of his candidacy and whether he deposed to any affidavit in support of the letter of withdrawal. These are hostile issues of fact, not of law. Originating Summons procedure is normally resorted to where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the pleading and/or affidavits of the parties to the suit. If there are serious disputes as to facts, the normal Writ of Summons ought to be taken out not Originating Summons. See Zakirai vs. Muhammad & Ors (supra); Famfa Oil vs. A.G. Federation (2003) LPELR-1239 (SC). Originating Summons are usually heard on affidavit evidence and involves questions of law rather than disputed issues of fact. See Inakoju vs. Adeleke (supra), where Tobi, JSC, explained that – In Originating Summons, facts do not have pride of place in the proceedings. The cynosure is the applicable law and its construction by the court. He explained that facts only play an infinitesimal role under Originating Summons, unlike under Writ of Summons where facts are regarded as holding a pride of place and the fountain head of the law as they lead to the legal decision in the matter. That is not to say that whenever there is some dispute as to facts, Originating Summons procedure shall not be employed. Far from that, after all, in litigations, there would always be some disputes on certain questions of fact. However, where the resolution of the disputes through the opposing affidavits of the parties would be difficult or impossible, Originating Summons should not be used. See Alfa vs Attai (2017) LPELR-42579 (SC). Where a claim involves allegation of forgery, as in the instant case, it cannot be proved on the bare assertions in the affidavit and further affidavit. Witnesses ought to be called to testify and be cross-examined by the opponent in order to test the veracity of their testimony. By their very nature, facts constituting allegations of fraudulent concoction or forgery of signature or documents are controversial and must be established by evidence elicited in a trial, not by affidavit. In the recent case of Sulaiman & Ors vs. All Progressives Congress (APC) & Ors (2022) LPELR-58846 (SC), where allegation of forgery of exhibit G was made, his lordship, Okoro, JSC, while delivering the leading judgment of the Apex Court, stated at pages 35-36 of the Report:
"... let me quickly state for purpose of emphasis that by the authority of Doherty v Doherty (1967) SCNLR page 408 an action would be improperly commenced by originating summons where facts are hostile and cannot be resolved on affidavit evidence only. See also Atago v Nwuche (2013) 3 NWLR (pt. 1341) 337. In the instant case, it is undoubted that allegations of forgery and procurement of fake congress report were made. By virtue of Section 135(1) of the Evidence Act, 2011 the standard of proof of such allegation is proof beyond reasonable doubt which would certainly require plenary trial. The mere fact that the authenticity of exhibit "G" was in contention was sufficient reason to commence the action vide a writ of summons or at best the learned trial Judge ought to have called for oral evidence to clarify the disputes in the affidavits."
From the affidavit in support of the claim, counter affidavit in opposition and the further affidavit in which allegation of forgery was made, it is evident that the irreconcilable and disputed facts presented before the lower court are such that would warrant a full-dress trial to unravel the authenticity of exhibits C, D and E, and the lower court ought to have ordered pleadings. The trial court was therefore wrong and in error when it heard the suit on Originating Summons, which error affected its proper evaluation of the evidence, leading to a miscarriage of justice. For the lower court to have arrived at a conclusion that the 1st Respondent has proved its case, there must be a finding that the allegation of fraudulent concoction or forgery of the 1st Respondent’s signature against the late Muhammed M. Bukar and the Appellant herein has been proved beyond reasonable doubt. No such finding was made by the lower court in its entire judgment. Therefore, apart from the wrong procedure used by the 1st Respondent in filing his suit, the offence of fraud or forgery alleged by the 1st Respondent has not been established to the legally required standard of proof beyond reasonable doubt. The lower court cannot, in all sincerity, determine criminal allegation of forgery against the Appellant and a deceased person, through the instrumentality of affidavit evidence, without affording them the opportunity of drilling their accuser in the exercise of their right of cross examination. I am fortified in this finding by the most recent decision of the Supreme Court in the case of David Edevie vs. Oborevwori Sheriff Francis & Ors (2022) LPELR-58931 (SC), where it was held, per Abubakar, JSC, that the allegations of various crimes against the Appellant cannot be resolved vide affidavit evidence and on an Originating Summons.
In the final analysis, I resolve issues 2 & 3 in favour of the Appellant. On the whole, despite the resolution of issue 1 in favour of the 1st Respondent and against the Appellant, I find this appeal to be imbued with merit and is hereby allowed. Judgment of the Federal High Court, Damaturu in Suit No. FHC/DM/CS/15/2022 delivered by Hon. Justice Fadima Murtala Aminu on 26th October, 2022, is hereby set aside. I order that parties shall bear their respective costs.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
APPEARANCES:
J.J. Usman, SAN, for the Appellant, with Isiaka Kadiri, C.O. Ogbu, and I.Q. Abbey.
Y.H. Liman with Mustapha Muhammad for the 1st Respondent.
M. I. SIRAJO, JCA CA/G/203/2022 | PAGE OF |
