Whether the Originating Summons Procedure Is Suitable to Commence an Action where Allegations of Crime Are Directly in Issue

CASE TITLE: APC v. SHERIFF & ORS (2023) LPELR-59953(SC)

JUDGMENT DATE: 6TH FEBRUARY, 2023

PRACTICE AREA: CIVIL PROCEDURE

LEAD JUDGMENT: CHIMA CENTUS NWEZE, J.S.C.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on electoral matters.

FACTS:

The case of the 1st Respondent at the Federal High Court, Damaturu was that he won the primary election of the Appellant held on 28th May, 2022, for the nomination of its candidate for Yobe North Senatorial District, wherein he scored 289 out of 300 votes. He stated that although the Appellant’s primary election which was originally scheduled for 19th May, 2022 was, by a letter to INEC, rescheduled to 27th May, 2022.

The Appellant had written another letter to INEC, informing it that the primary election would hold on 28th May, 2022. It was the further case of the 1st Respondent that the 2nd Respondent was an aspirant in the Appellant’s Presidential primary election held on 8th June, 2022, and that he was not an aspirant in the Yobe North Senatorial District primary election. He stated that the primary election won by him was conducted by the National Working Committee (NWC) of the Appellant and that without cancelling same, the Appellant purported to conduct another primary election on 9th June, 2022, in which the 2nd Respondent was declared winner of the said primary election and his name submitted to INEC.

On the other hand, it was the case of the Appellant and the 2nd Respondent that the primary election for Yobe North Senatorial District was rescheduled from 19th May, 2022 to 27th May, 2022, but that it could not hold on the 27th May, 2022, due to “logistics reasons”. It was their case that the primary election of 28th May, 2022, from which the 1st Respondent emerged, was conducted by the Yobe State Executive of the party, without authorization of the NWC. They claimed that the NWC made a resolution to cancel the said primary election because it was invalid and conducted another one on 9th June, 2022, in which only the 2nd Respondent participated and emerged the winner.

Each of the three Defendants filed a Notice of Preliminary Objection challenging the jurisdiction of the trial Court on various grounds, including that the 1st Respondent did not have locus standi to institute the action, that the suit was statute barred and that the suit disclosed no reasonable cause of action. All the objections were dismissed and the trial Court proceeded to grant the 1st Respondent’s claims, holding that the primary election of 28th May, 2022 was the valid primary of the election of the Appellant.

Aggrieved by the decision of the trial Court, the appellant appealed to the Court of Appeal, which affirmed the decision of the trial Court. Aggrieved by the decision of the Court, the appellant appealed to the Supreme Court.

ISSUES:

The issue for determination was:

“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.”

DECISION/HELD:

In conclusion, the Supreme Court, in a majority decision, allowed the appeal and struck out the suit of the 1st respondent. Justice Jauro and Agim, JJSC dissented.

RATIOS:

• ACTION – ORIGINATING SUMMON(S): Class of matters that can be tried in a suit commenced by Originating Summons
• ACTION – ORIGINATING SUMMON(S): Nature and essence of originating summons procedure; instance(s) in which the adoption of originating summons will/will not be appropriate to commence an action
• ACTION – ORIGINATING SUMMON(S): Whether an originating summons can be used to commence an action involving an allegation of fraud and irreconcilable conflicts
• ACTION – ORIGINATING SUMMON(S): Whether originating summons is meant to be utilized where there is no dispute as to facts; how to determine whether an action can be commenced by originating summons
• ELECTORAL MATTERS – NOMINATION AND SPONSORSHIP OF CANDIDATE: Statutory provision as regards the procedure for adoption of consensus candidate(s) by a political party
• ELECTORAL MATTERS – POLITICAL PARTY PRIMARY: Which organ of a political party has the power to conduct primaries to elective positions at the national level; who has the burden to prove that the primary was conducted by the National Working Committee and on what standard
• ELECTORAL MATTERS – PRE-ELECTION MATTERS: When will an aspirant have a right of action in a pre-election matter
• ELECTORAL MATTERS – POLITICAL PARTY PRIMARY: Whether an aspirant can contest in several primaries during an election cycle; the position of the Electoral Act 2022 as regards double and multiple nominations