➥ CASE SUMMARY OF:
All Progressives Congress v. Bashir Sheriff (2023) – SC
by “PipAr” Branham-Paul C. Chima.
Supreme Court – SC/CV/1689/2022
➥ JUDGEMENT DELIVERED ON:
Monday, the 6th Day Of February, 2023
➥ AREA(S) OF LAW
Mode of commencement of actions.
➥ PRINCIPLES OF LAW
⦿ COMMENCING BY ORIGINATING SUMMONS OR BY WRIT OF SUMMONS
As demonstrated above, Originating Summons is, particularly, employed in commencing a suit when what is in dispute is the mere construction of documents or interpretation of law in respect of which pleadings are unnecessary or where there is no real dispute as to facts between the parties, G. F. Harwood, Odger’s Principles of Pleadings and Practice in Civil Actions (Twentieth Ed) (New Delhi – India: Universal Law Publishing Co. Pvt. Ltd, 2010) 352; F. Nwadialo, Civil Procedure in Nigeria (Lagos: University of Lagos Press, 2000) 211; Arjay Ltd and Ors v A. M. S. Ltd (2003) LPELR -555 (SC) … The situation is different in a suit commenced by Writ of Summons where the facts are regarded as holding a pride of place and the fountain head of the law in the sense that the facts lead to a legal decision on the matter. That is not the position in proceedings commenced by Originating Summons, where facts do not play a central role but an infinitesimal role. On the distinction between Originating Summons and Writ of Summons, see the following cases: Dapianlong v. Dariye (supra); Keyamo v. House of Assembly, Lagos State  18 NWLR (pt. 799) 605; Director, SSS v. Agbakoba  3 NWLR (pt. 595) 314; Famfa Oil Ltd v. Attorney-General, Federation and Anor  18 NWLR (pt. 852) 453; Inakoju v. Adeleke (supra); and Attorney-General, Adamawa State and Ors v. Attorney-General, Federation and Ors (2005) LPELR- 602 (SC). — C.C. Nweze, JSC.
⦿ FRAUD CANNOT BE DETERMINED IN AN ORIGINATING SUMMONS PROCEEDINGS
I am aware that it is not every seeming conflict arising from affidavit evidence that would warrant the calling of or resort to oral evidence for its resolution. However, where the issues of facts are contentious and border of the copious allegations of fraudulent practices as in the first respondent’s suit, it calls for caution on the path of the court from rushing to determine such a claim on affidavit evidence alone in an Originating Summons, as such a case is, in my view, one more suited and proper for determination on the pleadings and evidence of the parties under the procedure by way of a Writ of Summons. — C.C. Nweze, JSC.
⦿ ALLEGATION OF FRAUD NOT PARTICULARISED IS USELESS AND CANNOT SUCCEED
This is because in law, an allegation of fraud requires that the particulars of fraud be set out to confer any modicum of seriousness on such an allegation of fraud to warrant further enquiry into it at trial. In other words, unless and until an allegation of fraud is, expressly, made and supported by its particulars, it is a non-starter as it is well settled that a mere or bare or banal allegation of fraud, no matter how grave, is of no moment if it is not supported by the relevant particulars as required by law, Nammagi v. Akote  3 NWLR (pt. 1762) 170. An allegation of fraud that is merely generic, vague and lacking in the specific and particulars is in law a non-starter and useless, PDP v. INEC and Ors (2012) LPELR 9724 (SC) Nishizawa Ltd v. Jethwani (1984) 12 SC 234; UBA and Anor v. Alhaji Babangida Jargaba  11 NWLR (pt. 1045) 247. — C.C. Nweze, JSC.
⦿ WHAT IS FRAUD?
What then is fraud or what in law can amount to fraud? In law, fraud has simply been defined as an advantage gained by unfair means; a false representation of fact made knowingly, or without belief in its truth, or recklessly, not caring whether it is true or false. Fraud also means an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. It is also a false representation of a matter of fact whether by words or by concealment of that which should have been disclosed, which deceives another so he shall act upon it to his legal injury, Jowitt’s Dictionary of English Law, Vol. 1, 2nd Edition, p. 827; Black’s Law Dictionary, 8th Edition, p. 660. — C.C. Nweze, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Chima Centus Nweze, JSC.
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
On June 22, 2022, the first respondent herein, Bashir Sheriff, commenced an action, by way of Originating Summons, at the Federal High Court, Damaturu Judicial Division, against the appellant, second and third respondents. He sought the determination of four questions:
- Whether in view of the provisions of Section 84(5) (c) of the Electoral Act, 2022, and having regard to the provisions of Article 20.4 of the Constitution of the All Progressives Congress (APC) and the Guidelines for the Nomination of Candidates for the 2023 General Elections issued by the first defendant, it is lawful for the first defendant to recognize any person other than the plaintiff as its candidate, for Yobe North Senatorial District for the position of Senate.
- Whether in view of the provisions of Section 84(5) (c) of the Electoral Act, 2022, and having regard to the provisions of Article 20.4 of the Constitution of the All Progressives Congress (APC) and the Guidelines for the Nomination of Candidates for the 2023 General Elections issued by the first defendant, it is lawful for the first defendant to change the name of the plaintiff who emerged winner at the Primary Election conducted by the first defendant for Yobe North Senatorial District.
- Whether in view of the provisions of Section 84(5) of the Electoral Act, 2022, the first defendant is not under a mandatory duty to forward the name of the plaintiff as its candidate for Yobe North Senatorial District to the third defendant and the third defendant is under a duty to accord him recognition and publish his name as candidate for Yobe North Senatorial District.
- Whether in view of the provisions of Section 84(5)(c) of the Electoral Act, 2022, and having regard to the provisions of Article 20.4 of the Constitution of the All Progressives Congress (APC) and the Guidelines for the Nomination of Candidates for the 2023 General Elections issued by the first defendant, the purported primary election conducted on any date after the date of the Presidential Primary Election is not invalid, null and void the plaintiff who won the primary of May 28, 2022, having not withdrawn his candidature.
After taking arguments from the contending parties and considering evidence before it, the trial court, by its judgment delivered on September 28, 2022, found in favour of the first respondent. The trial court held inter alia, that the first respondent’s action is a pre-election matter and being a pre-election matter, it falls squarely within its jurisdiction. Consequently, the trial court granted all reliefs sought by the first respondent under the Originating Summons. The judgment of the trial Court is contained at pages 768 – 817 of the Record of Appeal.
Aggrieved by the decision of the trial Court, the appellant appealed to the Court of Appeal, (hereinafter, simply, referred to as “the lower court”). The lower court, in its judgment at pages 967 – 1098 of the Record of Appeal, affirmed the decision of the trial court.
Aggrieved by the decision of the lower court, the appellant has now appealed to this court via a Notice of Appeal filed on December 9, 2022.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether in the circumstances of the appeal before the court below, especially with the allegation of fraud in the midst of other irreconcilable conflicts in the numerous affidavits, further affidavits filed by the parties in support of their various conflicting positions, the court below was correct to hold that the trial court was right to have adjudicated the first respondent’s case on the first respondent’s originating summons?
RULING: IN APPELLANT’S FAVOUR.
A. THE CASE OF THE RESPONDENT HAS IRRECONCILABLE CONFLICTS WHICH ORIGINATING SUMMONS CANNOT RESOLVE
“I have carefully read the affidavit, further affidavits endorsed in the Originating Summons and counter affidavits and I am of the view that the first respondent made allegations of fraudulent practices against the appellant as well as other irreconcilable conflicts. Order 3 Rule 2 (b) of the Federal High Court (Civil Procedure) Rules, 2019, provides that where a suit is based on or alleges an allegation of fraud, it must not be commenced by Originating Summons. Surely, any attempt “to prove the liability of the defendant” through the Originating Summons procedure, where the Affidavit (s) and Counter Affidavits evince the subsistence of substantial disputes, must be resisted, Inakoju v Adeleke (supra); Re Sir Lindsay Parkinson & Co Ltd Settlement Trusts (supra); Re Powers, Lindsell v Phillips (supra); Re Giles, Real and Personal Advance Co v Michell (supra); Re Doherty, Doherty v Doherty (supra).”
“It cannot be otherwise for substantial disputes could only be resolved in the usual adversarial proceedings upon the settlement and exchange of pleadings: averments in pleadings borne out by oral evidence – oral evidence tested in cross examination, Cameroon Airlines v Otutuizu (2011) LPELR -827 (SC) 36; Insurance Brokers v. Atlantic Textile  9 10 SCNJ 171, 183; Housing Corporation v. Enekwe  1 SCNJ 98, 133; Odutola v. Papersack Nig Ltd  18 NWLR (pt. 1012) 470; Aake and Anor v. Akun  14 NWLR (pt. 840) 311; (2003) LPELR -72 (SC) 9, paragraph G; Ajuwon v. Akanni and Ors  9 42 NWLR (pt. 316) 182, 200; Magnusson v. Koiki and Ors  9 NWLR (pt. 317) 28.”
B. ORIGINATING SUMMONS IS NOT SUITABLE WERE ALLEGATIONS OF FRAUD ARE MADE
“More fundamentally, there is considerable force in the submission that the trial court, wrongly, purported to determine the suit – a suit in which the claimant/first respondent hauled criminal allegations against the appellant as defendant – through the Originating Summons procedure, Nwobodo v. Onoh  LPELR -8049 (SC) 6-7, F-A; Emmanuel v Umana and Ors. (2016) LPELR -40037 (SC) 17 – 18. Indubitably, that approach was a sacrilegious affront to a basic requirement that a person, who is so confronted, should be able to confront his accuser. This is, usually, done through cross-examination or by the confrontation or contradiction of all the witnesses that testify against him; Nwanegbo v. Oluwole (2001) 37 WRN 10l; Dawodu v . N. P. C. (2000) 6 WRN 116; Durwode v. The State (2001) 7 WRN 50.”
“In the instant case, particulars were not even set out on the allegations of fraud as required by law, between the parties on the strength of the affidavit evidence placed before the lower court by the first respondent. The Originating Summons procedure was, irredeemably, improper to commence a suit founded steeply on allegation of diverse acts of fraud, misrepresentation and forgery. Such allegations are criminal in nature and central to the claims of the first respondent. They must be proved beyond reasonable doubt even in a civil proceedings and thus suitable for proceedings commenced by way of Writ of Summons, Section 135 (1) of the Evidence Act 2011; UAC Ltd. v. Taylor (1936) 2 WACA 70; Usenfowokan v. Idowu (1969) NMLR 77; Nwobodo v. Onoh and Ors. (1984) NSCC 1.”
C. THE DECISION OF THE COURT OF APPEAL & TRIAL COURT ARE PERVERSE
“It is thus clear to me that the judgment of the trial court and the lower court on the first respondent’s Originating Summons, which they reached on disputed depositions in affidavits, were perverse and occasioned miscarriage of miscarriage of justice and so liable to be set aside. This must be so for where the procedure adopted to ventilate grievances is wrong, the processes ought to be struck out, Odiase and Anor. v. Agho and Ors.  1 All NLR (pt. 1) 170, 177.”
REFERENCED: Federal High Court (Civil Procedure) Rules, 2019, particularly, Order 3 Rules 6, 7, and 8.
“Accordingly, this appeal is allowed and the judgment of the Court of Appeal, Gombe Judicial Division, sitting in Abuja, delivered on November 28, 2022, which affirmed the judgment of the Federal High Court, Damaturu Judicial Division, delivered on September 28, 2022 and all the orders made therein, are hereby set aside. The first respondent’s suit is, hereby, struck out.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (CASE)
⦿ ORIGINATING SUMMONS IS NOT APPROPRIATE PROCEDURE WHERE QUESTIONS OF FACT ARE IN DISPUTE
In the case of Standard Cleaning Services Company v. The Council of Obafemi Awolowo University, Ile-Ife (2011) 14 NWLR (pt. 1269) 193 at 204 205, 213, the court held that: “Originating Summons should only be applicable in circumstances where there is no dispute on the question of facts or even the likelihood of such dispute. Application for initiating contentious issues of facts where the facts of the plaintiff leave matter for conjecture, Originating Summons is not appropriate procedure. Where it is obvious from the state of the affidavit that there would be an air of friction in the proceedings, then an Originating Summons is not appropriate. Originating summons should be used only where the proceeding involves question of law, rather than disputed facts, even where the facts are not in dispute, the Originating Summons should not be used, if the proceedings are hostile.”
➥ REFERENCED (OTHERS)