Must Questions for Determination Be Raised in an Action for the Construction/Interpretation Of The Guidelines/Law Of A Political Party Commenced By an Originating Summons

CASE TITLE:                PDP v. AHMAD & ORS (2023) LPELR-59651(CA)

JUDGMENT DATE:     27TH JANUARY, 2023

JUSTICES:                     CHIDI NWAOMA UWA, JCA

                                       MOHAMMED BABA IDRIS, JCA

                                       MUSLIM SULE HASSAN, JCA

DIVISION:                     KADUNA

PRACTICE AREA:          ELECTORAL MATTERS

FACTS:

The 1st Respondent who was an aspirant was defeated at the primary election conducted on the 22nd day of May, 2022, and scored 29 votes against 34 votes scored by the 2nd Respondent. Dissatisfied, the 1st Respondent as Plaintiff filed an action at the Federal High Court via an originating summons challenging the election and return of the 2nd Respondent as the candidate of the Appellant for the House of Representatives for Malumfashi/Kafur Federal Constituency of Katsina State for the 2023 General Election. The 1st Respondent alleged thus: change of venue for the primary election without prior notice, the substitution of duly elected delegates with non-delegates, lack of accreditation of delegates and non-issuance of a copy of the election result. The 1st Respondent sought several declaratory reliefs and orders.

In response, the Appellant contended that the originating summons did not contain any issues or questions for determination and that there was nothing to substantiate the complaints of the 1st Respondent against the conduct of the primary election or against any of the Respondents.

Also, the Appellant and the 2nd Respondent jointly filed a notice of preliminary objection and also opposed the originating summons where all the allegations were denied by the Appellant and the 2nd Respondent.

The trial Court entered judgment in favour of the 1st Respondent. Aggrieved by the judgment, the Appellant lodged an appeal at the Court of Appeal. The appeal was heard on the Appellant’s brief alone.

ISSUES FOR DETERMINATION:

The Court determined the appeal on the following issues:

“1 Whether the 1st Respondent’s Originating Summons is competent?

2. Whether the trial Court was right to have granted the 1st Respondent all the reliefs sought in his Originating Summons considering the Affidavit evidence before the trial Court?”

COUNSEL SUBMISSION

The appellant’s counsel submitted that the originating summons filed by the 1st Respondent is fundamentally defective for failure to set out issues or questions for determination in line with Order 3 Rule 6 of the Federal High Court (Civil Procedure Rules) 2019.

He stated that issues or questions for determination must be set out so as to give the other party adequate notice of the case and not be taken by surprise. See PRP V. INEC (2004) 9 NWLR (PT. 877) 24 AT 44 F – G.

Counsel argued that the absence of issues for determination touched on the Appellant’s right to a fair hearing and goes to the root of the originating summons. On this, he cited the case of UNIVERSITY OF JOS & ANOR V. VICTOR ARO (2019) LPELR – 46926 (CA) PAGE 17 – 21, PARAS. D.

He further argued that the originating summons is a contravention of the provisions of Paragraph 4 of the Federal High Court (Pre-Election) Practice Directions 2022 and Order 3 Rule 6 of the Rules of the Federal High Court.

DECISION/HELD:

In conclusion, the appeal was allowed and the judgment of the Federal High Court was set aside.

RATIO:

ACTION- ORIGINATING SUMMON(S): Whether it is necessary to raise questions for determination in an originating summons commenced in an action for the construction/interpretation of the guidelines/law of a political party

“​The Appellant has alleged that the 1st Respondent did not raise any questions for determination by the Court, whether there was a breach of the provisions of the Guidelines and the Constitution of the 2nd Respondent. From the Affidavit evidence in support of the originating summons and the Further Affidavit alongside the reliefs sought, the formulation of questions for determination was fundamental in the present circumstance which renders the originating summons incompetent. I am at one with the submissions of the learned counsel to the Appellant that the case of OKEZIE V. CBN (supra) relied upon by the trial Court is inapplicable as it was not a pre-election matter and not the same circumstance as the present appeal. The Plaintiff was not seeking to interpret the provisions of any Guideline, Law or instrument in Okezie’s case.

Okezie’s case was an action initiated under the Companies and Allied Matters Act, 2004 and Company Proceedings Rules, 2001 as opposed to the present suit which is a pre-election matter as rightly argued by the learned counsel to the Appellant. Form 4, relied upon by the trial Court in holding that if a party chose Form 4 in commencing his action, “he does not need to raise questions before setting out the reliefs which he is seeking” but, Form 4 as provided in the Schedule of the Federal High Court Rules relates to a special category of proceedings such as arbitral proceedings. In Okezie’s case the Plaintiff was not seeking to interpret the provisions of any enactment, Guideline or Law rather, the Court was urged to set aside the decision taken by the Governor of the Central Bank who ordered the removal of all the executive Directors of the 6th Respondent, the Union Bank Plc and replaced them with his nominees. In the present appeal, without posing/raising questions for determination by the lower Court in the originating summons, the Appellant as the Respondent would not know in advance the case to prepare to defend at the trial but, would only have been faced with the reliefs/declarations sought, without the background or questions to be looked into by the trial Court before it can properly consider the reliefs sought by the Appellant.

​The issues/questions raised for determination by the Court gives notice of the case to be met, which enables both parties prepare their evidence and arguments based upon the questions/issues for determination. In this case, the evidence would be affidavit evidence upon which cases commenced by originating summons are fought. This way, the defendant would not be taken by surprise and the Plaintiff would be in a better position to put forward his case and complaint for which the reliefs are sought properly before the Court. It is for the benefit of both parties that the questions to be looked into and examined by the Court are enumerated which would be looked into alongside the reliefs sought, moreso declaratory reliefs. See, GEORGE & ORS, V, DOMINION FLOUR MILLS LTD (1963) LPELR – 15458(SC) P.10, PARAS A – D, ALHASSAN & ANOR. V. ISHAKU & ORS. (2016) LPELR – 40083(SC) P. 15, PARAS. B – E and BUNGE & ANOR. V. GOVERNOR OF RIVERS STATE & ORS. (2006) LPELR – 816(SC) PP. 27 – 28, PARAS. G – C. Also, Paragraph 4 of the Federal High Court (Pre-Election) Practice Directions 2022 and Order 3 Rule 6 of the Rules of the trial Court earlier reproduced in this judgment made provision for

the determination of any question of construction arising under the instrument and for a declaration of the right of the person interested. It is clear from the above provision that there has to be questions for determination arising from an instrument before a declaration of the right sought. The implication of the above provision is that in an originating summons, there must be “questions” for determination over which the Court would exercise its jurisdiction to interpret, absence of which the Court cannot delve into granting the reliefs sought which are not predicated on any question for determination. See, LAU V. PDP (2018) 4 NWLR (PT. 1608) 60 SC.

The 1st Respondent at the lower Court did not frame or formulate any issue/question concerning any instrument or enactment that needed to be interpreted by the trial Court. I am at one with the submissions of the learned counsel to the Appellant that the originating summons is defective. The Apex Court has held that framing issues is important for the validity of an originating summons in the Federal High Court and that it is important that the particular questions of construction between the parties be clearly identified in the body of the summons before the Court. In OLLEY V. TUNJI (2013) 10 NWLR (PT. 1362) 275 AT 322, PARAS. B – G; (2013) LPELR 28, his lordship, Ngwuta, JSC stated the position of the law thus:

“…. the lower Court grossly erred in its assumption that mere indication that the originating summons was brought pursuant to named legislations ipso facto raised question or questions on the cited legislations for the Court to interpret. If by merely bringing the originating summons pursuant to Order 3 of the Federal High Court (Civil Procedure) Rules, …

…and the inherent jurisdiction of the Court, 1st & 3rd Defendants had ignited the interpretative jurisdiction of the Court, how would the trial Court interpret its inherent jurisdiction? The position of the lower Court is tantamount to reading into the process filed before the Court that was not contained therein….

…….. The trial Court treated the non-inclusion of questions for determination in the originating summons as mere irregularity whereas the lower Court treated the questions for a determination as inherent in the indication of the rules and statutes pursuant to which the originating summons was brought.

With respect, each of the lower Courts was wrong for a different reason. As for the trial Court, the questions for construction in the instrument in question is an integral part, sine qua non, of the Originating Summons is incurably defective and not merely irregular.

….no interpretation of Order 3 of the Federal High Court Rules can afford relief.

….. The order simply affords a plaintiff the right to approach the Court by way of Originating Summons….. the originating summons without the questions on which to predicate the declarations sought is incompetent…. The originating summons was not commenced by due process of law. The issue of question or questions for determination in an originating summons is a question of substance……..”

(underlined mine for emphasis)

​From the above decision, it is clear that questions/issues for determination provide sufficient particulars to identify the cause of action. The questions raised enable the Court to determine the remedy which the Court could declare also based on statute, Will or any enactment in an originating summons, the grant of the reliefs sought is preceded by and predicated upon, the Court’s answer to the questions for determination. The question for construction/interpretation of an instrument is an integral part of an originating summons without which the process is defective and cannot be treated as an irregularity. The words used in Order 3 Rule 6 of the rules of the trial Court are clear to the effect that there must be on the face of the originating summons:

(1) Questions for construction

(2) Declaration of rights.

The declaration of rights of a person’s interest would depend on the questions raised for determination in respect of construction arising under the instrument involved. The Plaintiff cannot properly seek a declaration of rights without questions for determination.

Further, in respect of the exception and distinction made suo motu by the trial Court between actions via Forms 3 and 4, pages 195 – 196 of the printed records of appeal, as rightly argued by the learned counsel to the Appellant, the trial Court did not call the parties to address the Court on it since this distinction was not raised by the 1st Respondent in his response to the Appellant’s Notice of Preliminary Objection challenging the competence of the originating summons. This issue is substantial as it touched on the jurisdiction of the trial Court and could determine the matter one way or the other, as it did on the issue of jurisdiction of the trial Court.

The Court was duty bound to hear the parties on the difference between actions under originating summons brought under Forms 3 and 4 and which one does not require questions for determination to be formulated to determine whether the reliefs could be granted or not. See, CHARLES ODEDO V. PEOPLES DEMOCRATIC PARTY & ORS. (2015) LPELR – 24738 (SC) PP. 40 – 41, PARAS. E – D, LAHAN & ORS. V. LAJOYETAN & ORS. (1972) LPELR – 1748 (SC) P. 9, PARAS. C – D and DICKSON OGUNSEINDE VIRYA FARMS LTD V. SOCIETE GENERAL BANK LTD & ORS, (2018) SC, PP, 12 – 13, PARAS. D – E. I hold that the Appellant’s originating summons without questions for determination in the present circumstance of the case is incompetent, same is struck out.” Per UWA, J.C.A.