ZAKIRAI v. MUHAMMAD & ORS

CITATION: (2017) LPELR-42349(SC)

In the Supreme Court of Nigeria

ON FRIDAY, 28TH APRIL, 2017Suit No: SC.433/2015

Before Their Lordships:

IBRAHIM TANKO MUHAMMAD Justice of the Supreme CourtMARY UKAEGO PETER-ODILI Justice of the Supreme CourtKUMAI BAYANG AKA'AHS Justice of the Supreme CourtAMINA ADAMU AUGIE Justice of the Supreme CourtPAUL ADAMU GALINJE Justice of the Supreme Court

BetweenHUSSAINI ISA ZAKIRAI - Appellant(s)

And1. SALISU DAN AZUMI MUHAMMAD2. ALL PROGRESSIVE CONGRESS (APC)3. INDEPENDENT NATIONAL ELECTORALCOMMISSION (INEC)4. ALHAJI UMAR HARUNA DOGUWA

- Respondent(s)

RATIO DECIDENDI

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1. ACTION - ORIGINATING SUMMONS/WRIT OF SUMMONS:Distinction between an originating summons and a writ of summons"By Order 3 Rule 1 (1) of the 2009 Rules, Civil proceedings at the trialCourt may be commenced by Writ or Originating Summons, etc. As thefirst Respondent said, most, if not all, the pre election matters thatcome to this Court are initiated by Originating Summons but theAppellant contends that the writ of Summons is more appropriate.?The distinction between two modes of commencing an action boilsdown to whether there is a serious dispute as to facts involved.Where there is a serious dispute as to facts, a Writ of Summons mustbe issued. In other words, where it is evident from the Affidavitevidence before the Court that there would be "an air of friction" in theproceedings, an Originating Summons is no longer appropriate - seeNRC V. Cudjoe [2008] 10 NWLR (Pt.1095) 329 and Famfa Oil Ltd. V. A.-G. Fed. (2003) 18 NWLR (Pt. 852) 453, where this Court held- The verynature of an Originating Summons is to make things simpler forhearing. It is available to any person claiming interest under a deed,will or other written instrument whereby he will apply by OriginatingSummons for the determination of any question of construction arisingunder the instrument for a declaration of his interest - - It is aprocedure where the evidence in the main is by way of documents andthere is no serious dispute as to their existence in the pleading of theparties to the suit. In such a situation, there is no serious dispute as tofacts but what the Plaintiff is claiming is the declaration of his rights. lfthere are serious disputes as to facts then a normal Writ must betaken out not Originating Summons - Doherty v Doherty (1968) NMLR241."Per AUGIE, J.S.C. (Pp. 62-64, Paras. D-A) - read in context

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2. ACTION - ORIGINATING SUMMON(S): Whether facts have a place inoriginating summons"In effect, Originating Summons is a procedure wherein the evidence ismainly by way of documents and there is no serious dispute as to theirexistence in the pleadings - see Famfa Oil V. A-G. Fed. (supra). It isusually heard on affidavit evidence and involves questions of lawrather than disputed issues of fact - see Inakoju V. Adeleke (2007) 4NWLR (Pt. 1025) 423, wherein Tobi, JSC, explained that -In Originating Summon, facts do not have pride of place in theproceedings. The cynosure is the applicable law and its construction bythe Court. The situation is different in a trial commenced by Writ ofSummons where the facts are regarded as holding a pride of place andthe fountain head of the law in the sense that the facts lead to a legaldecision on the matter. That is not the position in proceedingscommenced by Originating Summons where facts do not play a centralrole but an infinitesimal role.?Facts may be inconsequential in proceedings commenced by way ofOriginating Summons, which are determined on affidavit evidence, butit is important that conflicts in the affidavitsare not glossed over - see Gbileve V. Addingi (supra), where this Courtaffirmed the legal position stated by Nwodo, JCA (of blessed memory),as follows - Where proceedings in a Court are by affidavit evidence, itis important that conflicts in such affidavits are not glossed over. TheCourt is enjoined to look at the nature of the conflict. When facts aredeposed in an affidavit, the purpose of counter-affidavit is to contradictthose facts and not merely set up a distinct fact as defence. Where theconflict arising from affidavit and counter affidavit depositions are noton material issues, the Court calling for oral evidence becomeunnecessary. ln effect, where the conflicts are not material to the caseor where the facts are inadmissible in evidence, the Court should notbe saddled with the responsibility of calling oral evidence to resolvethe conflict - Furthermore where conflicting evidence can be resolvedfrom documentary evidence, the need to call oral evidence becomesunnecessary.The bottom line, as far as this case is concerned, is the observation -"when facts are deposed to in an affidavit, the purpose of a counter-affidavit is to contradict those facts and not merely set up a distinctfact as defence."Per AUGIE, J.S.C. (Pp. 64-66, Paras. A-A) - read incontext

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3. APPEAL - RESPONDENT TO AN APPEAL: Options open to arespondent who is dissatisfied with a judgment"It is a well-established principle of law that the primary duty of aRespondent in an appeal is to support the judgment/decision of a lowerCourt appealed against. ?Where a Respondent is not comfortable witha finding, not the entire Judgment, which he considers fundamental, hecan challenge same by filing a cross-appeal - Cameroon Airlines V.Otutuizu (2011) 4 NWLR (Pt. 1238) 512, Obi V. INEC (2007) 11 NWLR(Pt. 1046) 565. Where the Respondent supports the judgment, butwants it affirmed on grounds other than those relied upon by theCourt, he must then file a Respondent's Notice - Kayili V. Yilbruk (2015)LPELR-24323(SC).Without a cross-appeal or Respondent's Notice, he will not be allowedto attack the judgment, and the effect of violating this rule is thatarguments in his brief in support of the Appellant will be ignored - seeObi V. INEC (supra). In this case, the fourth Respondent urged thisCourt to allow the Appeal in Appellant's favour, which is wrong, andthe end result is that the arguments in his brief will be ignored."PerAUGIE, J.S.C. (Pp. 14-15, Paras. E-D) - read in context

4. APPEAL - APPEAL AGAINST DECISION/FINDING OF COURT:Whether an appellant can only contest the decision of a lower court onissues properly raised before it"...As attractive as that line of argument is, the said provision was notconsidered at the lower Courts, and this Court cannot go there.This is because considering its argument will change the texture of thecase that went through the grill at the lower Courts. Besides, anAppellant's right of appeal is circumscribed within the parameters of adecision appealed against. Thus, it is the opinion appealed against thatis affirmed or reversed, and this cannot undertake decisions, whichmay be of utmost importance, without hearing what the Court belowhad to say about it -see Uor V. Loko (1988) 2 NWLR (Pt. 77) 430 SC,Nuwon v. Adeoti (1990) 2 NWLR (Pt. 131) 271 SC."Per AUGIE, J.S.C. (P.29, Paras. C-F) - read in context

5. COURT - DISCRETION OF COURT: Whether a court can be bound bya previous decision to exercise its discretion in a particular way"Judicial discretion is described as a sacred power that inheres to ajudge, and which he should employ judicially and judiciously - Achi V.Ebenighe & Ors (2013) LPELR-21884 (CA). Since two cases are notalways the same, this Court does not lay down rules to fetter theexercise of its discretion or that of the lower Courts. Thus, a Courtcannot be bound by a previous decision to exercise its discretion in aregimented way, because that would be putting an end to discretion -Odusote V. Odusote (1971) NSCC (Vol. 7) 231, Ajuwa & Anor v. ShellPetroleum Dev. co. Nig, Ltd. (2011) 18 NWLR (Pt.1279) 797 SC."Per AUGIE, J.S.C. (Pp. 41-42, Paras. E-A) - read in context

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6. COURT - JURISDICTION: What determines jurisdiction of Court toentertain a cause/matter"It is settled that is the Plaintiff's claims that determine jurisdiction;that is to say, it is the claim before the Court that has to be looked atto ascertain whether it comes within the jurisdiction conferred on it -see Elelu-Habeeb V. A.G. Fed. (2012) 13 NWLR (Pt. 1318) 423 SC."PerAUGIE, J.S.C. (P. 53, Paras. D-F) - read in context

7. EVIDENCE - CONTRADICTION IN EVIDENCE: Duty of court wherethere are contradictions in the evidence of witness(es)"The law insists that where there are material contradictions in theevidence adduced by a Party, the Court is enjoined to reject the entireevidence as it cannot pick and choose which of the conflicting versionto follow - Kayili V. Yilbuk & Ors (2015) LPELR -24323(SC)."Per AUGIE,J.S.C. (Pp. 70-71, Paras. F-A) - read in context

8. EVIDENCE - CONTRADICTION IN EVIDENCE: What amounts tocontradiction in evidence"A piece of evidence is contradictory to another when it asserts oraffirms the opposite of what that other asserts. Put another way,evidence contradicts evidence, when it says the opposite of what theother evidence says, not on just any point, but on a material point -Odunlami V. Nigerian Army (2013) LPELR-20701(SC)."Per AUGIE, J.S.C.(P. 71, Paras. A-C) - read in context

9. EVIDENCE - ORAL/DOCUMENTARY EVIDENCE: The position of thelaw where there is oral as well as documentary evidence"It is an elementary principle that documentary evidence is used as ahanger to test veracity of evidence, whether oral or by affidavit - seeGbileve V. Addingi (supra), Kimdey V. Mil. Gov. Gongola (1988) 2 NWLR(Pt.77) 445 and Fashanu V. Adekoya (1974) 4 SC 83. Thus,documentary evidence is a hanger to base other pieces of evidence.Inpolitical cases, the only proof of winning of an election is the electionresult duly issued; mere averments cannot stand up to that. The Courtbelow was right to place a greater value on documentary evidence,which bears eloquent testimony to what happened - See Aiki V. ldowu(2005) 9 NWLR (Pt 984) 47, wherein it was observed- Documents whentendered and admitted in Court are like words uttered and do speakfor themselves. They are even more reliable and authentic than wordsfrom the vocal cord of man because they are neither transient norsubject to distortion and misinterpretation but remain permanent andindelible through the ages. The documents bear eloquent testimony towhat happened."Per AUGIE, J.S.C. (P. 73, Paras. A-F) - read in context

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10. EVIDENCE - CONTRADICTION IN EVIDENCE: What amounts tocontradiction in evidence"Of note is the fact that the Court below found and rightly so that thetwo pieces jointly filed by the 2nd and 4th respondent contradictedthemselves. That situation does not qualify as conflict in affidavit forwhich there would be justification in calling for oral evidence of thedeponents to resolve the conflict. Such oral evidence in resolution ofconflict comes into play where it is conflict against the other party notparties on one side of the divide. See cases of Arjoy Ltd v AMS Ltd(2003) 4 NWLR (Pt.863) 425: Gbileve & Anor. v Addingi & Anor.(2014)16 NWLR (Pt. 1433) 394."Per PETER-ODILI, J.S.C. (P. 98, Paras. C-F) -read in context

11. JUDGMENT AND ORDER - ORDER OF COURT: Effect of an orderissued by a Judge"The stance of the appellant clearly goes against the basic principlethat orders of Court are deemed valid until set aside by the sameCourt or on appeal. This position is well stated by this Court in the caseof Babatunde v Olatunde (2000) 2 NWLR (Pt. 646) 568."A judgment of a Court of competent jurisdiction remains valid andbinding, even where the person affected by it believes that it is void,until it is set aside by a Court of competent jurisdiction. The positiontherefore is that a person who knows of a judgment, whether null orvoid, given against him by a Court of competent jurisdiction cannot bepermitted to disobey it. His unqualified obligation is to obey it unlessand until that judgment has been set aside."Per PETER-ODILI, J.S.C.(Pp. 87-88, Paras. F-C) - read in context

12. JUDGMENT AND ORDER - ORDER OF COURT: Effect of an orderissued by a Judge"A judgment or order of Court remains in force and binding on theparties until it is set aside. Service of Court processes may be ajurisdictional issue which can be raised at any stage of a case.However when a trial Court has determined and made pronouncementon that issue, a party who is aggrieved must follow the right coursethat is appeal challenging the pronouncement must go through theCourt of Appeal before a subsequent appeal from the Court of Appealcan be heard and determined in this Court.See Rossek v. ACB Ltd (1993) 8 NWLR (Pt. 312) 382, S.233 of theConstitution of the Federal Republic of Nigeria 1999, Babatunde v.Olatunde (2000) 2 NWLR (Pt.646) 568."Per GALINJE, J.S.C. (P. 100,Paras. B-E) - read in context

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13. JURISDICTION - CONCURRENT JURISDICTION: Whether the FederalHigh Court has concurrent jurisdiction with a State High Court inrespect of matters dealing with nomination or selection of candidatesof a political party for election into any office"This issue has been flogged and over-flogged in political casesdecided by this Court, and the position is pretty well-settled that anydissatisfied contestant at the primaries is now empowered by Section87(9) of the Electoral Act, 2010 (as amended) to ventilate hisgrievance at the Federal High Court or High Court of a State or of theFederal Capital Territory - Lokpobiri V. Ogola & Ors (2015) 10-11 MJSC74, Jev V. lyortyom (2014) All FWLR (Pt. 747) 749 SC."Per AUGIE, J.S.C.(P. 56, Paras. B-D) - read in context

14. JURISDICTION - CONCURRENT JURISDICTION: Whether the FederalHigh Court has concurrent jurisdiction with a State High Court inrespect of matters dealing with nomination or selection of candidatesof a political party for election into any office"Finally the trial Court, by virtue of S.87 (9) of the Electoral Act. hasjurisdiction to hear and determine cases bordering on whether primaryelections are conducted in accordance with party guidelines, ElectoralAct and the Constitution. The complaint before the trial Court wasabout the conduct of primary election by the 2nd Respondent for thenomination and/or selection of a candidate representing GabasawaConstituency of Kano State House of Assembly for the 2015 generalelection. Clearly, the Federal High Court has jurisdiction andcompetence to entertain the case See Gbeleve v. Addingi (2014) 16NWLR (Pt. 1433) 394."Per GALINJE, J.S.C. (P. 101, Paras. A-E) - read incontext

15. LEGAL PRACTITIONER - COUNSEL/CLIENT RELATIONSHIP:Whether Court is concerned with the terms and conditions agreed by aparty and his Counsel"To start with, the issue of representation by counsel is a matter ofcounsel-client relationship, which this Court cannot get involved in -see the case of Chief M.K.O Abiola V. F R N (1996) LPELR-40 (SC),wherein this Court, per Belgore, JSC (as he then was) said as follows-The best person to decide who represents him ... is the Appellant, andthat is his constitutional right. ... Time honoured practice is for thisissue of representation to be decided by counsel after consulting theAppellant, or the Appellant writing to intimate his choice of counselor... It is always a privilege, the matter of counsel-client relationship, andI do not believe it is right to involve the Court in this. What is more,where there is no averment that the authority of the counsel toconduct the case on a party's behalf has been withdrawn, it isaccepted that counsel had general or apparent authority to so do - seeAfegbai v. A-G., Edo State (2001) 14 NWLR (Pt. 733) 425 SC."PerAUGIE, J.S.C. (Pp. 12-13, Paras. E-C) - read in context

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16. PRACTICE AND PROCEDURE - SUBSTITUTED SERVICE: Whetherthe Court can order substituted service without an attempt at personalservice"Order 6 Rule 5 (a) to (e) of the 2009 Rules, dealing with substitutedservice, and Order 6 Rule 5 (a) and (b) reads, Where it appears to theCourt (either after or without an attempt at personal service) that forany reason personal service cannot be conveniently effected, theCourt may order that service be effected either -(a) By delivery of the document to an adult person at the usual or lastknown place of abode or business of the person to be served; or(b) By delivery of the document to some person being an agent of thePerson to be served, or to some other person, on it being proved thatthere is reasonable probability that the document would in theordinary course, through that agent or other person, come to theknowledge of the person to be served.There it is - the trial Court may order substituted service either after"or without an attempt at personal service". The word "may'' makesroom for the exercise of discretion. lt is an enabling and permissiveword and in that sense, it imposes or gives a discretionary power - seeMokelu V. Fed. Comm., Works and Housing (1976) All NLR 224."PerAUGIE, J.S.C. (Pp. 40-41, Paras. E-D) - read in context

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17. PRACTICE AND PROCEDURE - WAIVER OF RIGHT: Whether theissue of jurisdiction can be waived or conceded"A litigant may submit to a procedural jurisdiction of the Court, but nolitigant can confer jurisdiction on the Court where a Statute or theConstitution says that the Court does not have jurisdiction. Thus, whilesubstantive jurisdiction of the Court cannot be waived, a party canwaive a matter relating to procedural jurisdiction of the Court, and thisis usually determined from reliefs sought in the process - Mobil Prod.(Nig) UnLtd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1 SC.In other words, irregularity in the exercise of jurisdiction should not beconfused with a total lack of jurisdiction - see Mobil Prod. (Nig.) UnLtd.V. LASEPA (supra) wherein Ayoola, JSC, explained that-Notwithstanding that, sometimes, the distinction between substanceand procedure is blurred, it is generally accepted that matters(including facts), which define the rights and obligations of the partiesin controversy, are matters of substance defined by substantive law,whereas matters, which are mere vehicles, which assist the Court ... ingoing into matters in controversy or litigated before it, are matters ofprocedure regulated by procedural law. Facts, which constitute thecause of action, are matters of substance and should be pleaded,whereas facts, which relate to how a party is to invoke the jurisdictionof the Court for a remedy pursuant to his cause of action, is a matterof procedure outside the realms of pleadings. This distinction wasstated thus in Halsbury's law of England, Vol. 8(1), 4th Edition, para.1066: Generally speaking, it may be said that substantive rules give ordefine the right, which it is sought to enforce, and procedural rulesgovern the mode or machinery by which the right is enforced. ?In thiscase, there is no question that contrary to his vehement stand, theAppellant's Objection was basically a challenge to the proceduraljurisdiction of the Court rather than a challenge to its substantiveconstitutional or statutory jurisdiction to entertain the said Suit - seeAdegoke Motors Ltd. V. Adesanya (1989) 3 NWLR (Pt. 109) 250 SC. HisObjection was a complaint against the competence of the trial Court toentertain the Suit because the Originating Summons was not endorsedor marked as required by the said Act and Rules, which touches on theprocedural rules that got Parties to the Court, and nothing whatsoeveron the facts that led to the cause of action or substance of the Suitfiled by the first Respondent. Any defect amounted to a mereirregularity that can be waived by the Parties."Per AUGIE, J.S.C. (Pp.45-47, Paras. D-E) - read in context

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18. PRACTICE AND PROCEDURE - WAIVER OF RIGHT: When a party isdeemed to have waived his right"Was the said irregularity in this case waived? This Court nailed thisissue to the ground in Adegoke Motors Ltd. V. Adesanya (supra),wherein it stated categorically that in similar circumstances like this,the filing of a memorandum of appearance, as was done in this case,constitutes a waiver of any irregularity, and constitutes a submissionto the jurisdiction of the Court. In that case, Oputa, JSC, observed - Awrit of summons (valid or invalid is immaterial at this stage) wasserved on the Defendants. The Defendants could, if they wanted toeither:-(i) Enter an appearance on protest; or(ii) Enter a conditional appearance and;(iii) Then file a Motion asking the Court seised of the matter ... to setaside the purported Writ and the purported service on the ground ofessential invalidity of both Writ and Service.The Defendants did not do this. Rather they entered an appearancethrough their Solicitor... This implied that they wanted and intended tocontest the case of the Plaintiffs."Per AUGIE, J.S.C. (Pp. 47-48, Paras. E-D) - read in context

19. PRACTICE AND PROCEDURE - SERVICE OF COURT PROCESS(ES):Who can raise the issue of non-service"I will just say that it was none of his business, and my response issupported by decisions of this Court - see Chime V. Chime (supra),cited by first Respondent, wherein this Court, per Wali, JSC, stated - Itis not in dispute that neither 1st Respondent nor the 3rd Respondentcomplained against non-service of the Court processes... or any otherorder made. It does not, therefore, lie in the mouth of the Appellants tocomplain on their behalf. It is abundantly clear that neither the 1st nor3rd Respondents complained against non-service of any Court processon him. The Court of Appeal was perfectly right when it stated-For a party to a suit to apply for the proceedings to be nullified byreason of failure of service, where service is a requirement, it mustsufficiently be established that he or she has not been served inrespect of the proceedings and that the order made therein affectshim. It is not --open to every party to the proceedings to make such anofficious complaint. If such complaint is sustainable, it will yieldstartling results. Thus, an aggrieved Plaintiff-- would be enabled toappeal against a judgment on the technical ground that a party to theproceedings has not been served same process."Per AUGIE, J.S.C. (Pp. 49-50, Paras. E-E) - read in context

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20. PRACTICE AND PROCEDURE - SERVICE OF COURT PROCESS(ES):Who can raise the issue of non-service"...Appellant has no locus standi to so do. See the case of Chime vChime (2001) FWLR (pt. 39) pg. 1457 @ 1470 para D -G. this Courtheld in the lead judgment per Wali JSC (as he then was) as follows:"For a party to a suit to apply for the proceedings to be nullified byreason of failure of service, where service is a requirement, it mustsufficiently be established that he or she has not been served inrespect of the proceedings...In the instant case it was not open to the applicants to argue that theproceedings be nullified on the ground that the 3rd defendant was notserved with the originating summons."Per PETER-ODILI, J.S.C. (P. 89, Paras. A-D) - read in context

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AMINA ADAMU AUGIE, J.S.C. (Delivering the Leading

Judgment): This Appeal relates to a pre-election matter,

and it turns substantially on the issue of service outside

jurisdiction. The first Respondent filed an action by way of

originating Summons against the Appellant and other

Respondents at the Federal High Court, Kano [trial Court],

wherein he presented the following question for

determination-

Whether the 3rd Defendant can publicize, recognize and

include the name of the 2nd Defendant or deal with him as

the candidate of 1st Defendant (APC) to contest election

into Kano State House of Assembly representing Gabasawa

Constituency of Kano State scheduled to take place on

28/2/2015, the plaintiff having scored the majority of the

lawful votes cast at the primary election held by the 1st

Defendant on 2/12/2014 in Gabasawa Local Government

Area of Kano State for the purpose of presenting a

candidate of the Party for election into Kano State House of

Assembly to represent Gabasawa Constituency of Kano

State.

The First Respondent, as Plaintiff, also claimed the

following reliefs -

1. An order of this Hon. Court directing 3rd Respondent to

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publicize, recognize and include the name of the Plaintiff as

the 1st Defendant's rightful candidate for Gabasawa

Constituency of Kano State House of Assembly in the

general election scheduled to take place on 28/2/2015.

2. A declaration of Court that the Plaintiff is the rightful

candidate of the 1st Defendant who will represent

Gabasawa Constituency of Kano State House of Assembly

in the general election scheduled to take place on

28/2/2015 having scored the majority of votes cast at the

primary election conducted by the 1st Defendant on

2/12/2014 in Gabasawa Local Government Area [LGA] of

Kano State for the purpose of producing a candidate of the

1st Defendant for the election.

3. An order of Court restraining the Defendants either

through their agents, privies or whosoever claiming on

their behalf, from recognizing, treating, publishing, listing

or considering the name of 2nd Defendant (sic) as 2nd

Defendant's (sic) candidate to represent Makada

constituency of Kano House of Assembly in the general

election scheduled to take place on 28/2/2015.

The Originating Summons was filed on 5/2/2015, and the

addresses endorsed thereon for service on

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the second and third Respondents, who were the first and

third Defendants respectively, were situated at the Federal

Capital Territory, Abuja. However, by Motion Ex-parte filed

on the same day – 5/2/2015, the first Respondent sought

and was granted leave to serve the other Parties by

substituted means - the second Respondent, Appellant, and

fourth Respondent through "Barrister Haruna Falali", Legal

Adviser of Kano State Branch of APC, and the third

Respondent [INEC] through its office situated in Kano.

Upon being served, second and fourth Respondents entered

unconditional appearance, while the Appellant and third

Respondent entered conditional appearance. Initially, one

Nura Zubair, Assistant Legal Adviser of APC in Kano State,

deposed to a Counter Affidavit filed on 16/2/2015, wherein

he averred that he had consent of the second and fourth

Respondents to do so. He further averred that -

5. The 1st Defendant indeed conducted primary election

into the Kano State House of Assembly Gabasawa

constituency.

6. Both the Plaintiff and the 2nd Defendant participated in

the primaries having satisfied all the conditions set out by

the 1st Defendant

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and the Plaintiff scored 216 votes while the 2nd Defendant

scored 32 votes.

7. The 1st Defendant forwarded the name of the Plaintiff.

The Plaintiff having won the primaries and having satisfied

all the conditions set out by the 1st Defendant.

8. The Plaintiff is the rightful candidate for the election into

the House of Assembly of Gabasawa Constituency.

Later, fourth Respondent himself deposed to a Further and

Better Counter-Affidavit filed on 27/2/2015, wherein he

averred that as the Chairman of APC, Kano (the 1st

Defendant), he did not give the said Nura Zubair authority

to depose to the earlier counter affidavit "as they do not

represent the true position of facts"; and furthermore-

5. That I, as the Chairman of the 1st Defendant knows as a

fact that no primary election into the House of Assembly of

Gabasawa constituency was conducted by the 1st

Defendant on 2/12/2014.

6. That the 1st Defendant did not send the name of anybody

to the 3rd Defendant in respect of the said Gabasawa

House of Assembly Primary Election.

7. That the Counter Affidavit deposed to by Nura Zubair

was done without my consent and knowledge and that of

the 1st

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Defendant because of breakdown in communication.

The third Respondent [INEC] filed a Counter-Affidavit to

the said Further and Better Counter-Affidavit, wherein the

deponent averred-

1. I have read the Further and Better Counter-Affidavit of

the 1st and 4th Defendants and wish to state as follows:-

(a) Paragraphs 5, 6 and 8 of the 1st and 4th Defendant’s

Further and Better Counter-Affidavit all are not true

(b) The 1st Defendant conducted its primary election into

State House of Assembly Gabasawa constituency on

2/12/2015 and was duly monitored by the 2nd Defendant.

(c) The 3rd Defendant on 25/12/2015 at its National

Headquarters Abuja received Form CF001 from the 1st

Defendant in the name of the 2nd Defendant as its

candidate standing for election into State House of

Assembly Gabasawa Constituency. [Said Form annexed as

Exhibit A3].

(d) The said Form CF001 was displayed by the 3rd

Defendant in compliance with its statutory duty.

(e) The 1st Defendant did forward the name of the 2nd

Defendant and same was published in the final list of

candidates standing for 2015 General Election.

(f) That the 3rd Defendant

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have no power to list any name in the list of candidates

standing for election save the one forwarded by the

Political Party.

On 6/3/2015, the Appellant filed a Notice of Preliminary

Objection to the competency of the said Suit premised on

the following Grounds -

a) That the Originating summons was neither

endorsed nor marked as required by the Sheriffs and

Civil Process Act and the Enforcement of judgment

and Service of the Process Rules.

b) That this trial Court has no jurisdiction to

entertain the action on account of the Paragraph (d)

above.

c) Any other order or orders as this Honourable Court may

deem fit to make in the circumstances of this case.

In all, Parties filed seven series of Affidavits, Counter-

Affidavits and Further and Better Counter-Affidavits. They

were taken together, and in his Judgment delivered on

11/3/2015, the learned trial Judge, F. O. Riman, J.,

concluded as follows on the Preliminary Objection -

This originating summons was filed on 5/2/2015 and

the address of service endorsed on the originating

summons are ... However, on 6/2/2015, this Court

pursuant to the motion Ex-Parte filed on 5/2/2015

granted

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leave to the Plaintiff to issue and serve the 1st, 2nd

and 4th Defendants with the Originating Summons

and all other Court processes in this matter by

substituted means ... It is my considered view that

with the intervening order of this Court issued on

6/2/2015 before the service of the Originating

Summons outside jurisdiction, the requirements of

the Sheriffs and Civil Process Act as provided in

Sections 95 to 99 for writ meant for service outside

jurisdiction was no longer necessary as service (sic)

and to be served in Kano State within jurisdiction. I

find as a fact [that] service was properly done in Kano

State within jurisdiction.

As to the suit itself, he relied on the decisions of this Court

in CPC v Ombugadu (2013) 18 NWLR (1385) 79 SC

and Gbileve v. Addingi (2014) 16 NWLR (Pt. 1433) 402

SC, and granted all the reliefs sought by first Respondent,

who he added, "remains the 1st Defendant's candidate to

represent Gabasawa Constituency" in the said Election.

Dissatisfied, the Appellant filed an Appeal at the Court

below, wherein he formulated the following three issues for

determination-

i. Whether the issuance and service of the Originating

Summons

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in this Suit was validly done.

ii. Whether the trial Court was right to have assumed

jurisdiction to entertain and determine this Suit.

iii. Whether the claims were rightly granted and without

resolving the issues and without calling for oral evidence.

The 1st Respondent cross-appealed against this part of its

decision -

I am of the view that as a party against whom the Writ

was taken out and issued, the 2nd Defendant [i.e. the

Appellant] has the inherent legal right to object to its

validity on any sustainable ground in law, whether or

not the challenge would benefit the 1st and 3rd

Defendants [i.e the first and third Respondents

herein]

He formulated one issue for Determination in his Cross

Appeal i.e. -

Whether in the circumstances of this case, the Appellant

has the inherent legal right to challenge the Originating

Summons issued and served in this case on the ground of

non-compliance with Section 97 of the Sheriff and Civil

Process Act.

The Court below was of the view that the Appellant's first

issue flows with the Cross-Appellant's Issue, and treated

both issues together.

At the end of it all, it resolved both Issues against

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the Appellant. It also resolved the Appellant's second and

third Issues against him, and dismissed the main appeal as

lacking in merit. However, it found the 1st Respondent's

Cross-Appeal meritorious, and it allowed same.

Aggrieved, the Appellant filed a Notice of Appeal in this

Court, which contains fifteen Grounds of Appeal. He

formulated five Issues for Determination therefrom in his

Brief of Argument and that is-

1. Whether the lower Court was right to have held

that leave to issue the Originating Summons, leave to

serve the Originating Summons and leave to mark

same for service outside jurisdiction are not

necessary, not mandatory, has been waived by the 2nd

and 3rd Respondents and cannot be raised by the

Appellants at all.

2. Whether the lower Court rightly held that issue of

substituted service and personal service was not

raised both at the trial Court and before the lower

Court, and indeed the issue of mode of service is

phantom, esoteric and not real?

3. Whether the lower Court rightly ignored the failure

to mark the summons as “concurrent” and trial

Court’s non-consideration of the “Further and Better

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Counter-Affidavit in this Suit”?

4. Whether the lower Court was right to hold that the

trial Federal High Court was competent and did

competently assume jurisdiction in this case?

5. Whether, in the circumstances of this case, the Suit

was rightly commenced by Originating Summons and

the lower Court rightly found on the Affidavit before

it including issues of forgery.

The first Respondent also formulated five Issues for

Determination-

1. Whether in the circumstances of this case the leave

of the trial Court to issue and mark the Originating

summons, which was served within jurisdiction of the

2nd and 3rd Respondents, was necessary and whether

the Appellant can raise same.

2. Whether the Lower Court was right when it held

that the Appellant did not raise the issue of the

validity of the order of substituted service before the

trial Court.

3. Whether in the circumstances of this case there

was failure from the part of the 1st Respondent to

have marked the Originating Summons as concurrent.

4. Whether the trial Court (Federal High Court) has

jurisdiction over this matter.

5. Whether the lower Court was right when it

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held that the trial Court was right when it decided the

matter before it based on the Affidavit evidence

placed before it.

There is a bit of a hiccup regarding second and fourth

Respondents' Briefs of Argument. The Appellant argued in

his Reply Brief that the second Respondent's brief filed on

12/1/2017, was filed out of time, and is, therefore,

incompetent. He referred the Court to an Affidavit of

Service filed on 23/2/2016, which shows that the second

and the fourth Respondents' counsel was served with his

brief on 10/8/2015 and another Affidavit of service filed on

21/11/2016 which shows a "second direct service” of his

brief was also effected on 17/10/2016.

He urged this Court to strike out the brief since the

mandatory provision of Order 6 Rule 5(2) of its Rules, were

not complied with.

As the Appellant pointed out, this Court, on 11/1/2017,

advised learned counsel for the second and fourth

Respondents to regularize their briefs. But it is his

contention that their original brief was filed out of time

before then, and failure to file within time and without

regularizing same, is fatal, citing PDP V. INEC (2014) 17

NWLR (Pt. 1437) 525

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at 553 and CPC V. INEC (2011) 18 NWLR (Pt.1279)

493.

As it happened, I was on the Panel that sat on that

11/1/2017, and what the Appellant failed to mention in his

Reply Brief is that a Brief for second and fourth

Respondents was filed on 14/11/2016. But a different

counsel filed another Brief for them on 22/12/2016, and on

that day, two different counsel announced appearance for

the same second and fourth Respondents. After some

clarifications, this Court directed that they file separate

briefs for the Respondents.

The issue now is whether the separate Briefs of Arguments

filed by the second and fourth Respondents on 12/1/2017

and 16/1/2017 respectively, is competent. In my view, there

is nothing to this issue.

To start with, the issue of representation by counsel is a

matter of counsel-client relationship, which this Court

cannot get involved in - see the case of Chief M.K.O

Abiola V. F R N (1996) LPELR-40 (SC), wherein this

Court, per Belgore, JSC (as he then was) said as follows-

The best person to decide who represents him ... is

the Appellant, and that is his constitutional right. …

Time honoured practice is for this issue of

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representation to be decided by counsel after

consulting the Appellant, or the Appellant writing to

intimate his choice of counselor … It is always a

privilege, the matter of counsel-client relationship,

and I do not believe it is right to involve the Court in

this.

What is more, where there is no averment that the

authority of the counsel to conduct the case on a party's

behalf has been withdrawn, it is accepted that counsel had

general or apparent authority to so do - see Afegbai v. A-

G., Edo State (2001) 14 NWLR (Pt. 733) 425 SC.

In this case, Mrs. H. O. Ben Umar, who filed the first joint

brief, forwarded correspondence from the fourth

Respondent (to her); (from) the National Legal Adviser of

the second Respondent to her; and from the fourth

Respondent to the said National Legal Adviser, which

indicate that she had been briefed by the fourth

Respondent, the Chairman of APC, Kano, to represent him

and the said APC itself.

But the National Legal Adviser's letter refuting her

representation for second Respondent is dated 2/12/2016

after she had filed the brief.

However, the said series of letters were merely forwarded

and received

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by the Court on 22/12/2016: unattached to a Court process,

which means they are not properly before this Court, and

this Court cannot act or rely on anything said in the letters

regarding this issue.

In other words, there is nothing before this Court

challenging her authority to file the first joint Brief of

Argument on 14/11/2016, which was filed within the time

stipulated by the Rules of this Court.

However, both counsel resolved amongst themselves in

open Court that they would each appear for the said

Respondents separately.

Thus, there was a valid Brief in place before both counsel

filed the aforesaid separate briefs on 12/1/2017 and

16/1/2017 respectively. The contention that the said two

Briefs are incompetent lacks merit.

Even so, the fourth Respondent’s Brief wil l be

discountenanced because he is asking this Court to allow

the Appeal, which is not what is expected from a

Respondent to an appeal. It is a well-established principle

of law that the primary duty of a Respondent in an appeal is

to support the judgment/decision of a lower Court appealed

against.

Where a Respondent is not comfortable with a finding, not

the

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entire Judgment, which he considers fundamental, he can

challenge same by filing a cross-appeal - Cameroon

Airlines V. Otutuizu (2011) 4 NWLR (Pt. 1238) 512,

Obi V. INEC (2007) 11 NWLR (Pt. 1046) 565. Where

the Respondent supports the judgment, but wants it

affirmed on grounds other than those relied upon by the

Court, he must then file a Respondent's Notice - Kayili V.

Yilbruk (2015) LPELR-24323(SC).

Without a cross-appeal or Respondent's Notice, he will not

be allowed to attack the judgment, and the effect of

violating this rule is that arguments in his brief in support

of the Appellant will be ignored - see Obi V. INEC (supra).

In this case, the fourth Respondent urged this Court to

allow the Appeal in Appellant's favour, which is wrong, and

the end result is that the arguments in his brief will be

ignored.

The third Respondent filed a Brief, but only quoted the

decision of this Court in A-G, Fed. V. Abubakar (2007)

10 NWLR (Pt. 1041) 1, and added that in the light of the

admonitions therein by this Court, "[it] will abide by

whatever decision this Court renders in the Appeal”. It is

safe to say that it has nothing to contribute to the

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determination of this Appeal, but in my view, it did not

need to file a Brief to say so.

As it is, this Appeal will be determined on the three briefs

left. The second Respondent formulated the following three

Issues -

1. Whether the lower Court was right when it held

that the Originating Summons was competent and

upheld the decision of the trial Court which dismissed

the Appellant's Preliminary Objection.

2. Whether the lower Court was right when it held

that the trial Court rightly assumed jurisdiction in

this Suit.

3. Whether the lower Court considered the Further

and Better Counter Affidavit of 2nd and 4th

Respondents and rightly upheld the decision of trial

Court that granted all reliefs sought in the

Originating Summons.

The Appellant and first Respondent's Issues 1-3 which they

argued together in their respective briefs, and second

Respondent's Issue 1, are on the objection raised as to

validity of the Originating Summons, and the Appellant

addressed this Issue under the following heads –

i) issuance of the Originating summons;

ii) Endorsement of the Originating Summons issued

for service outside jurisdiction; and

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iii) Service of the Originating Summons outside

jurisdiction of the Court.

The first head is hinged on the point made by the Court

below that-

It is obvious from the cases of Touton SA V. Grimaldi

Compagnia Di Narga Zioni SPA (2011) 4 NWLR (Pt.

1236) 1 and Agip (Nig.) Ltd v. Agip Petroli

International (sic) NWLR (Pt. 1187) 348 relied on by

counsel for the submission that counsel to the

Appellant confused provisions of the Federal High

Court (Civil Procedure) Rules 2009. The Appellant

confused the provisions of the Federal High Court

(Civil Procedure) Rules 2000 with provisions of the

Federal High Court (Civil Procedure) Rule 2009.

Order 6 Rules 12(1) of the 2000 Rules stated very

clearly that “No writ which, or notice of which, is to

be served out of jurisdiction shall issue without the

leave of Court.” This Court is not aware of any such

corresponding provision in the 2009 Rules and none

was referred to by Counsel to the Appellant. Order 6

Rules 13 to 17 of the (2009) Rules talks about leave

to serve originating process out of jurisdiction and

not leave to issue. The proceedings in the lower Court

in this matter were governed by

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the provisions of the (2009) Rules and there was thus

no obligation on the first Respondent to obtain leave

to issue the Originating Summons it took out.

The said Federal High Court (Civil Procedure) Rules

coming up here will hereinafter be referred to as the 2000

Rules and the 2009 Rules.

The Appellant argued that a comparison of Order 6 Rules

12(1) of the 2000 Rules quoted by the Court below with

Order 6 Rules 13 to 17 of the 2009 Rules, shows that

though not in the exact language but their meanings,

intendments and principles remains the same; that it makes

provisions for leave to serve outside jurisdiction; and that

the question now is whether there is any guidance therein

for leave to issue originating summons for service outside

jurisdiction.

He contends that it is a rule of practice generated by

Section 9 of the Federal High Court Act and Order 56 Rule

8 of the 2009 Rules to the effect that the Court "shall adopt

such procedure as it deems fit to do substantial justice

between the parties concerned". He also referred to Order

6 Rule 14 of the 2009 Rules, and submitted that in Owners

of MV "Arabella" v. N.A.I.C. (2008) 11 NWLR

(Pt.1097) 182, this

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Court did not rely or use any specific provisions of the said

rules; and that leave to issue and serve are both

coterminous, mandatory and condition precedent to the

exercise of the Court's jurisdiction.

The first Respondent argued that it is wrong to assert that

the said provisions have the same meaning; that to say that

will amount to adding a phrase, which was repealed by the

Rules, and will equally amount to a Court becoming a

legislative body by making addition to an unambiguous

provision of the law; and that the Courts have no power to

impose on a litigant a duty that is not recognized by law.

Furthermore, that as the rules did not provide for leave to

issue, any attempt by the Appellant to make leave to issue

as a mandatory requirement, will amount to imposing an

obligation on him that the Rules of Court and other

enabling Statutes never imposed on him - Ault Wibong

(Nig.) Ltd. V. Nibel Ind. (2010) 5-7 MJSC (Pt. 111)

155

He also argued that since the 2009 Rules only provided for

leave to serve out of jurisdiction, it presupposes that all the

other things not specifically mentioned, such as leave to

issue, were excluded; encapsulated in

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the Latin Maxim, expressio unius est exclusio alterius -

what is stated in Statute expressly excluded that which is

not stated in the Statute - Osahon V. F.R.N. (2003) 16

NWLR (Pt 845) 89.

On the Appellant’s contention that it is rules of practice

that made it mandatory to seek leave before issuance of

originating processes, and that this Court did not use any

specific provision of those Rules in Owners of MV

"Arabella" V. N.A.I.C. (supra), he argued that this is

incorrect because that case was decided on the provision of

Order 10 Rule 14 of the Federal High Court (Civil

Procedure) Rules 1976.

The second Respondent also submitted that the Court

below was right, and referred to its finding at page

554-555, as follows-

This Court has read the provisions of Order 6 Rules

13 of the (2009 Rules) and Sections 97 and 99 of the

Sheriffs and Civil Process Act and must say that

nowhere therein was it stipulated that an originating

process for service outside jurisdiction cannot be

issued out of the Federal High Court without the

leave of Court.

It submitted that the position of the Court below represents

the true and correct interpretation of the

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provisions of Order 6 Rules 13 of the 2009 Rules, which

simply provided that leave must be obtained to serve a writ

outside the Court's jurisdiction; and that even the Appellant

in his entire submission before this Court could not debunk

that finding but heaped his objection on a duty purportedly

imposed on the first Respondent by the law, which the law

never provided.

What is this complaint all about? The Appellant is right that

the said Order 6 Rule 12 (1) of the 2000 Rules provides as

follows -

No writ which, or notice of which, is to be served out

of jurisdiction shall be served without the leave of

Court.

However, his contention is that the first Respondent

required leave to issue the Originating Summons for

service outside jurisdiction.

He concedes that Order 6 Rules 13-17 of the 2009 Rules

makes no mention of leave to issue but contends that it is a

rule of practice in conjunction with Order 6 Rule 14 (1) of

the 2009 Rules that says -

Every application for leave to serve a writ of notice on a

defendant out of the jurisdiction shall be supported by

affidavit or other evidence stating that in the belief of the

deponent the

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plaintiff has a good cause of action and showing in what

place or country the defendant is or probably may be found,

and the grounds upon which application is made.

He relied on the decision of this Court in Owners of MV

"Arabella" v. NAIC (supra) which he says gives judicial

support and credence to this position and rules of practice

that leave to issue must be sought.

As the first Respondent submitted, contrary to his

assertion, that case was decided based on Order 10 Rule 14

of the 1976 Rules.

Thus, the Respondents are right; the Appellant has not

come up with convincing arguments to counter the finding

of the Court below that the provisions of the 2009 Rules,

impose no obligation on the first Respondent to obtain

"leave to issue" the Originating Summons.

Rules of Court are not static; they change as the society

evolves and legal issues become more and more complex or

sophisticated. The said Federal High Court {Civil

Procedure} Rules of 1976 and 2000, may have stipulated

that no writ of service out of jurisdiction can be issued

except by leave of Court, but the 2009 Rules did not say so.

The Appellant cannot bring in, what he

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called a rule of practice, to hold sway or supersede

provisions of the 2009 Rules. No doubt, the Federal High

Court (Civil Procedure) Rules, has undergone several

modifications geared towards improving access to justice

since 1976, and to say that a particular rule must be

carried on and implemented under Rules made decades

later, amounts to taking the clock back. Let me just say that

this sub-issue is resolved against the Appellant.

The next head relates to the endorsement of the said

process. On this score, the Court below referred to the

provisions of Sections 97 and 99 of the Sheriffs and Civil

Process Act, and held as follows -

[They] were for the benefit of the second and third

Respondents listed to be served outside jurisdiction. It was

not in contest ... that the Originating Summons was

eventually served on the second and third Respondents in

Kano State within jurisdiction, and not outside jurisdiction.

Thus, the dereliction on the part of the first

Respondent was of no importance since they are in

respect of service carried out outside jurisdiction.

He further held as follows on the effect of the said

derelictions -

At a point in

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time there was so much confusion on the issue and this was

brought about by the decisions in Skenconsult (Nig) Ltd.

V. Ukey (1981) 1 SC 6, Ezamo V. Oyakhire (1985) 1

NWLR (Pt. 2) 195, Nwabueze V. Okoye (1988) 4

NWLR (Pt. 91) 664, Adegoke Motors Ltd. V. Adesanya

(1989) 3 NWLR (PT. 109) 250 and NEPA V Onah

(1997) 1 NWLR (Pt. 484) 680.

However, in Odu’a Investment Co. Ltd V Talabi (1997)

10 NWLR (Pt. 523) 1, the Supreme Court constituted a

full panel of seven Justices to consider the issue and to

reconcile its conflicting decisions on the issue and the

decisions of the Court, by a majority of six to one, was read

by Ogundare, JSC, [who] streamlined the views of the

Supreme Court on the issue… In other words, the

position taken by the full panel of the Supreme Court

was that non-compliance with the provisions of the

Federal High Court Rules and the Sheriffs and Civil

Processes Act is an irregularity, which only renders

the writ voidable, not void, and that such a writ will

be voided at the instance of a Defendant who acts

timeously and before further steps are taken in the

matter. It must be conceded that in Owners of the MV

“Arabella”

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V. N.A.I.C. (2008) 11 NWLR (Pt. 1097) 182 the

Supreme Court speaking on the effect of non-

compliance with Section 97 of the Sheriffs and Civil

Process Act said that… But the decision in Owners of

the MV “Arabella" v. NAIC was delivered by a panel of

five Justices of the Supreme Court, and it is

jurisprudentially correct that it cannot supersede,

override or take precedence over a decision delivered

by a panel of seven Justices of the Supreme Court.

The decision in Odu'a Inv. Co. Ltd. V. Talabi thus still

remains the law until it is set aside or overridden by a

decision of a panel of seven Justices or the Supreme

Court.

The Appellant submitted the position taken by the Court

below is not correct because the decision of this Court in

Odu'a V. Talabi (supra), cannot be a decision of the full

Court since one of the seven Justices, Kutigi, JSC, (as he

then was) dissented; that the ratio is basically on the

provisions of Section 99 of the Sheriff and Civil Process

Act; and that the Odua's Case is also distinguishable from

the present case.

He argued that good service cannot validate an invalid

process, and bad service cannot invalidate a

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valid process; that the prayer as granted is not for service

on them in Kano but for substituted service on them

through the said Barrister Haruna Falali, unlike Prayer 2

that said service on 3rd defendant "through its Kano

office", therefore, non-endorsement is of importance and

fatal to the entire process.

Furthermore, that he raised the point about non-

endorsement of either one out of the Originating Summons

issued for service within and outside jurisdiction with the

word "concurrent" in line with Order 3 Rules 19 and 20 of

the 2009 Rules, however, the Court below did not consider

it at all, for no reason or for no just cause; and that the

failure to consider same is a breach of fair hearing.

The first Respondent, however, submitted that the

Appellant's argument is purely academic since he did not

contest the fact that the service was carried out within the

jurisdiction of the trial Court.

Furthermore, that Section 97 of the Sheriff and Civil

Process Act is meant for the benefit of defendants residing

outside jurisdiction, who are not to be served outside

jurisdiction without the requisite endorsement; but where a

party is served with

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jurisdiction or even where a party is served outside the

jurisdiction and waived his right to challenge the

procedure, he will not later be heard to complain - Odu'a

Investment Ltd. V. Talabi (supra), and that second and

third Respondents, on whose behalf, the Appellant is

raising this issue, waived it and did not complain of non-

compliance at the trial Court.

He added that since the said Sections 97 and 99 of the

Sheriffs and Civil Process Act were promulgated for the

benefit of defendants residing outside jurisdiction, it will

amount to promoting champerty if the Appellant is allowed

to raise an issue that did not concern him.

As to the Appellant's contention that the said service is

wrong, he argued that he failed to fault the said finding of

the Court below, and none of them challenged that Order;

that Orders of Court are deemed valid until set aside by the

Court or quashed on appeal and it is not within the

province of a litigant to determine the validity of a Court

Order - Babatunde V. Olatunde (2000) 2 NWLR (Pt.

646) 568.

The second Respondent urged this Court to restate the law

that "purpose of service is to put the parties on notice of

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the subsistence of the pendency of a legal action against

them and afford them opportunities to raise a defence

against the legal action" because -

Any other expectation of service beyond this simple

point is technical justice and repugnant to the growth

of our jurisdiction in this country.

It further argued that the issue is being contended up to

this Court by a party, who has no business with the service

effected; and that –

The Appellant is merely contending that the Originating

process was not marked for service outside jurisdiction

even though there is an Order of Court directing service

within jurisdiction and that service had in fact been carried

out with parties taking further steps in the proceedings.

With respect, the Supreme Court should seriously

discourage contentions of this nature. Law is the life-wire

of every society. It must be organic and should grow as

society grows. Parties should be eager to have their

disputes determined on substance and not form.

Practitioners and Honourable Ministers of Law in the

Temple of Justice must be seen to encourage this as well.

Cases and clients will come and go but the law and the

Court will remain and we have a bounden duty to

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preserve the integrity of the Courts.

It also cited Order 6 Rule 31 of the 2009 Rules which

provides that "in this Order 'out of jurisdiction' means out

of the Republic of Nigeria", and argued that since the said

Rule provides that any State in Nigeria is within

jurisdiction, and Kano State is a State within the Federal

Republic of Nigeria, the issue of leave to serve or need to

mark for service outside jurisdiction, does not apply in this

case.

As attractive as that line of argument is, the said provision

was not considered at the lower Courts, and this Court

cannot go there.

This is because considering its argument will change the

texture of the case that went through the grill at the lower

Courts. Besides, an Appellant's right of appeal is

circumscribed within the parameters of a decision appealed

against. Thus, it is the opinion appealed against that is

affirmed or reversed, and this cannot undertake decisions,

which may be of utmost importance, without hearing what

the Court below had to say about it -see Uor V. Loko

(1988) 2 NWLR (Pt. 77) 430 SC, Nuwon v. Adeoti

(1990) 2 NWLR (Pt. 131) 271 SC.

In this case, the issue turns on the

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validity of the said process, and the relevant provisions of

Sheriffs and Civil Process Act are-

97. Every writ of summons for service - - 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 ... "This

summons (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).

98. A writ of summons for service out of the State or

the Capital Territory in which it was issued may be

issued as a concurrent writ with one within such State

or the Capital Territory and shall in that case be

marked as concurrent.

99. The period specified in a writ of summons for service - -

as the period within which a defendant is required to

answer before the Court to the writ – shall not be less than

thirty days after service of the writ has been effected or if a

longer period is prescribed by the Rules of the Court within

which the writ is issued, not less than that longer period.

Order 3 Rules 19 and 20 of the 2009 Rules,

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also provides as follows -

19. A Plaintiff may at the issuance of an originating

process or at any time during its life span, cause to be

issued one or more concurrent originating processes

each to bear the same date as the initial process.

Marked “CONCURRENT” and have stated on it the

date of issue.

20. An originating process for service within

jurisdiction may be issued and marked as a

concurrent originating process with one for service

out of jurisdiction and an originating process out of

jurisdiction may be issued and marked as a

concurrent originating process with one for service

within jurisdiction.

In other words, these provisions in the said Act and Rules

envisage a situation where one and the same originating

process is to be served within the jurisdiction and out of the

jurisdiction where it was issued. Both processes are to be

marked "Concurrent” and dated same day, at the time the

process is issued or at any time during its life span.

In this case, the Originating Summons filed by first

Respondent on 5/2/2015 has no such markings but has

addresses for service on second and third Respondent at

the Federal Capital Territory, Abuja.

On that same day,

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5/2/2015 before service had been effected, first Respondent

filed a Motion Ex-Parte praying the trial Court for an Order

of Court granting him leave "to issue and serve" the

Appellant and second, third and fourth Respondents by

"substituted means".

The Application was granted as prayed the next day,

6/2/2015, and the Appellant, second and fourth

Respondents were all served within jurisdiction through

"Legal Adviser of the Kano State Branch of [APC] in the

person of Barrister Haruna Falali", and third Respondent

[INEC] was also served within jurisdiction through its

"Kano Office”.

The Appellant filed a Memorandum of Conditional

Appearance, but followed it up with a Counter-Affidavit in

opposition to the first Respondent's Affidavit filed in

support of the Originating Summons, wherein he joined

issues with the first Respondent on the facts.

The Second and fourth Respondents f i led their

Memorandum of Appearance unconditionally, and they also

filed Counter Affidavits and Further and Better Counter-

Affidavits in reaction to the process.

Third Respondent filed a Conditional Memorandum of

Appearance, but it also filed a Counter Affidavit to

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the Affidavit in support of the Originating Summons. In

other words, the Appellant and the second, third and fourth

Respondents joined issues with the first Respondent as

regards the merit or otherwise of the Originating Summons

itself.

It is after this that the Appellant filed the Objection in

question. The trial Court overruled the Objection because,

in its view, the said Order of substituted service, which it

issued on 6/2/2015, before the Originating Summons could

be served outside jurisdiction meant that the service of

same was no longer necessary outside jurisdiction and so,

the service was properly done in Kano State within

jurisdiction.

Obviously, the Order for substituted service is at the center

of everything, and to resolve this issue, its status must be

determined.

This brings to the fore the Appellant's last head of

complaint- service of the Originating Summons outside

jurisdiction of the Court.

The Court below held as follows on the validity of the said

Order-

The Appellant also canvassed the issue of the

invalidity of the Order of substituted service made by

the lower Court on 6/2/2015 and consequent on which

the

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originating Summons was served on the Appellant

through the legal Adviser of the second Respondent.

Counsel has argued copiously in his brief of argument

that the Order was wrongly made within the scope of

Order 6 Rule 5 of the Federal High Court Rule. This

Court has read through the records of appeal in this

matter and did not see any application by the

Appellant to set aside the Order of substituted service

or a notice of appeal against the said Order. The issue

of validity of the Order of substituted service was also

not raised by the Appellant in any of the processes he

filed and neither was it canvassed before the Trial

Court. All that the Appellant complained about was

that he was not served personally with the originating

processes and not that the order of substituted

service was invalid.

The Court below further observed as follows at page 561 -

It was not the case of the Appellant that he did not

receive the processes served by the means of

substituted service. It was not his case that the mode

of service shortchanged his ability to respond to the

processes served on him. The Appellant in fact filed

his response to the processes. The complaint of

34

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the Appellant on the issue of substituted service is

thus phantom and esoteric and not real. It will not be

countenanced by this Court.

On this head of complaint, the Appellant submitted that the

eventual service in Kano is irrelevant; and that the said

Order of substituted service cannot be twisted as an

amendment of the address of service OR that endorsement

of the address for service outside jurisdiction was for fun,

which brings to bear the importance of an attempt at

personal service before making any order for substituted

service.

He further argued that the Parties cannot waive the fatal

non-compliance with the statutory mandatory provision of

Section 97 of the Sheriffs and Civil Process Act and that

any party can raise same as it is not waivable; that he

promptly took up the challenge because his complaint is

not only about service as in Odu'a v. Talabi (supra), but

also a fundamental substantive jurisdiction issue (relating

to issuance) which can be raised by any party or by the

Court suo motu, as Parties cannot by consent or

acquiescence confer jurisdiction on a Court - Odu'a v.

Talabi (supra), Owners of MV "Arabella" v. NAIC

(supra), Elugbe

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7) LP

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SC)

V. Omokhafe (2004) 11-12 SC 60, Mobil Producing

Nig. Unlimited & Anor v. Monokpo & Anor (2003) 12

SC (Pt.11) 50.

Furthermore, that he is entitled to raise the issue of

jurisdiction because he is not only a party in the case, who

cannot close his eyes to the invalidity of the Originating

Summons, but the objection to the summons will also enure

to his benefits, so the trial Court was right, and the Court

below was wrong to have held that Parties can waive the

mandatory statutory and substantive issue of jurisdiction.

On the question of not raising the issue of substituted

service at the trial Court, and not seeking leave to raise it

at the Court below, he admitted that the "issue was not

clearly raised" and attributed it "to error in the typing". He,

however, submitted that it was raised in the objection,

argued upon and considered (though not determined) by

the trial Court, and that Ground (a) in the Notice of

Preliminary Objection was concluded with “and service of

the process rules”.

He further submitted that the trial Court failed, refused

and or neglected to determine the issue, and the Court

below jettisoned the

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consideration of the effect of the failure on an improper

ground; and judicial pronouncement on the issue of

substituted service/personal service was appropriately set

out in M. Khatoun v. Hans Mehr (Nig.) & Ors (1961)

NWLR 27-28, Kida V. Ogunmola (2006) 13 NWLR (Pt.

997) 377 and Abacha V. Kurastic Nig. Ltd. (2014)

LPELR-22703 at 36.

He also contends that the failure of the trial Court to

consider the issue amounts to breach of his right to fair

hearing; and that the Court below ought to have also

considered and determined same, since it has a legal duty

to consider and decide all issues submitted by Parties to an

appeal for consideration, citing Adah V. NYSC (2004)

ALL FWLR (Pt.233) 1850, Ojoh v. Kamalu (2005) 18

NWLR (Pt.958) 523/556 and FMH v. CSA Ltd. (2009) 9

NWLR (Pt. 1145) 193/220-1.

He added that by dint of Section 22 of the Supreme Court

Act and Yusuf v. Obasanjo (2003) 16 NWLR (Pt. 847)

554, Odedo v. PDP (2015) 6 SC (sic), this Court can step

in, assume jurisdiction over the issue and make such or

"any order necessary for determining the real question in

controversy in the appeal" -Nwadike V. Ibekwe (1987)

11-12 SCNJ 72, Inakoju V.

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Adeleke (2007) 4 NWLR (Pt. 1025) 423, Amaechi V.

INEC (2008) 5 NWLR (Pt. 1080) (sic). Furthermore that

-

The real question is, was (he) and the 2nd to 4th

Respondents properly served? No. There was no service or

personal service. No attempt at service first. See Kida V.

Ogunmola (supra). Consequently, the purported service

on (him) as well as 2nd to 4th Respondents ought to be set

aside.

The first Respondent, relying on the decision of this Court

in Chime V. Chime (2001) FWLR (Pt. 39) 1457, insists

that the Appellant has no locus whatsoever to challenge the

service of the said process on the second and third

Respondents. He argued that the said Respondents did not

file any process at the trial Court to challenge its

jurisdiction, and did not file any notice or ground of appeal

against its decision; and that the Appellant cannot raise the

issue of non-compliance with Section 97 and 99 of the

Sheriff and Civil Process Act because they are made for the

benefit of persons residing outside jurisdiction.

Furthermore, that he failed to distinguish between

jurisdiction of Court (i.e. subject matter jurisdiction;

qualification of its members) and the

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issues pertaining to procedural jurisdiction - Hassan V.

Aliyu (2010) 7 MJSC 1, Ketu & anor. V. Onikoro &

Ors. (1984) 10 SC 265; that the case of Elugbe V.

Omokhafe (supra) which he cited, is not applicable as it

touches on the substantive jurisdiction of the Court and

that even if that Issue was raised in his own Affidavit, as he

said, it will not be considered as valid objection for the

following reasons-

(1) Objections and legal arguments are not raised in an

affidavit - Section 115 (2) of the Evidence Act 2011 and

Abiodun V. A-G, Federation (2007) 15 NWLR (Pt.

1057) 359 cited.

(2) The lower Courts were bound by the prayers as

contained on the face of the Preliminary Objection -

Sentinel Ass. Co. Ltd. V. SGBN (1992) 2 NWLR (Pt.

224) PG 495 @ 503.

Furthermore, that M. Khatoun v. Hans Mehr (Nig.) &

Ors (supra) cited by him was not decided based on the

Federal High Court Rules, 2009.

He submitted that Order 6 Rule 5 (a) and (b) of the 2009

Rules, provides how substituted service of Court's

processes are affected, and the Appellant did not say

anything on it; that his entire argument is nothing but

academic exercise; and that the cases

39

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he cited do not apply to the facts and circumstances of this

case, and should not be applied across the board, citing

Emeka V. Okadigbo (2012) 18 NWLR (Pt. 1331) (sic),

wherein Rhodes-Vivour,. JSC, stated as follows -

Facts have no views - - the rules of stare decisis don't

allow Courts to apply the ratio of a case across the

board with no regard to the facts of the case before

them.

On its part, the Second Respondent submitted that the

service can, at best, be said to be irregular, the process

being served on a branch of said Respondents and not the

headquarters, which can be waived, as it was done in this

case - Compagnie Generale De Geophysique (NILT)

CGG Nig. Ltd. Vs. Aminu (2015) LPELR-24463 (SC)

cited.

Where does one start? The arguments are convoluted

indeed, but a good starting point is Order 6 Rule 5 (a) to (e)

of the 2009 Rules, dealing with substituted service, and

Order 6 Rule 5 (a) and (b) reads,

Where it appears to the Court (either after or without an

attempt at personal service) that for any reason personal

service cannot be conveniently effected, the Court may

order that service be effected either -

(a) By delivery of

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the document to an adult person at the usual or last

known place of abode or business of the person to be

served; or

(b) By delivery of the document to some person being

an agent of the Person to be served, or to some other

person, on it being proved that there is reasonable

probability that the document would in the ordinary

course, through that agent or other person, come to

the knowledge of the person to be served.

There it is - the trial Court may order substituted service

either after "or without an attempt at personal service".

The word "may'' makes room for the exercise of discretion.

lt is an enabling and permissive word and in that sense, it

imposes or gives a discretionary power - see Mokelu V.

Fed. Comm., Works and Housing (1976) All NLR 224.

Judicial discretion is described as a sacred power that

inheres to a judge, and which he should employ judicially

and judiciously - Achi V. Ebenighe & Ors (2013)

LPELR-21884 (CA). Since two cases are not always the

same, this Court does not lay down rules to fetter the

exercise of its discretion or that of the lower Courts. Thus,

a Court cannot be bound by a previous decision to exercise

its

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discretion in a regimented way, because that would be

putting an end to discretion - Odusote V. Odusote (1971)

NSCC (Vol. 7) 231, Ajuwa & Anor v. Shell Petroleum

Dev. co. Nig, Ltd. (2011) 18 NWLR (Pt.1279) 797 SC.

What is clear in this case is that the trial Court had an

option to grant the first Respondent's prayer for substituted

service before any attempt was made to effect personal

service on the Appellant or not. It opted to grant the

prayer, and the effect thereof is that the said Originating

Summons, which had not been marked as "concurrent”, did

not require to be so marked because, by the said Order

issued, the process was to be served within jurisdiction and

it was so served.

To have such Order reversed, the Appellant must show that

the trial Court exercised its discretion wrongly or did not

give due weight to relevant considerations, and this

resulted in injustice done to him.

Did he make an issue of the order at the trial Court or

appeal against the said Order to the Court below - that is

now the question? He conceded that "the Issue was not

clearly raised" but insists that it ''was raised in the

objection, argued upon

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and considered" because -

- Ground (a) in the Notice of Preliminary Objection

concluded with "and service of the process rule”;

- Paragraph 4 (c) and (d) of the Affidavit in support of the

Notice of Preliminary Objection raised the issue of service;

- At the hearing of the objection, the first Respondent's

counsel objected that the objection was "not on issue of

personal service", and his own counsel argument before

and after that objection shows that the Issue of personal

service was raised and argued; and that

- The sole issue raised by the trial Court while considering

the objection shows that the issue of personal service was

obviously included i.e.

"Whether the Plaintiff's non-compliance with Section 97 of

the Sheriffs and Civil Process Act had robbed this Hon.

Court of its jurisdiction to adjudicate on its claims and non-

service of the originating process personally on the 2nd

Defendant/Applicant, and non-service [at] Head office of

the 1st and 3rd Defendants as they are both residing at

Abuja outside jurisdiction of this Court".

Obviously, the Appellant is grasping at straws and flimsy

ones at that.

To start with,

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Ground (a) in the Notice of Preliminary Objection merely

states that the Originating Summons was neither endorsed

nor marked as required by the Sheriffs and Civil Process

Act and the "Enforcement of Judgment and Service of the

Process Rules", which cannot by any stretch of imagination

be equated with challenging the Order of substituted

service of the process that was served on him.

And he only averred in the said Paragraphs 4 (c) and (d)

that he was never served with the process personally; and

that the processes "served on the 1st and 3rd Defendants

were not properly served".

Again, these averments in the Affidavit in support of the

said Notice of Preliminary Objection say nothing about the

said Order for substituted service that resulted in the

service of the said process.

He also relies on the arguments canvassed by counsel at

the hearing of the Objection but it is settled that arguments

of counsel, which are designed to assist the Court, are not

binding on the Court - Oruboko V. Oruene (1996) 7

NWLR (Pt. 462) 555. lf the argument is not binding on

the Court, how is it expected to step in and replace a clear-

cut objection challenging a valid

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Order made by a trial Court?

Obviously, the Court below was right that all that the

Appellant complained about was that he was not served

personally with the said process; not that the Order of

substituted service was invalid.

That aside, the Appellant also contends that he had every

right to challenge the validity of the Originating Summons

because non-compliance with that provision of the Sheriffs

and Civil Process Act is not waivable as it touches on the

substantive jurisdiction of a Court, which brings to question

its distinction with procedural jurisdiction.

A litigant may submit to a procedural jurisdiction of the

Court, but no litigant can confer jurisdiction on the Court

where a Statute or the Constitution says that the Court

does not have jurisdiction. Thus, while substantive

jurisdiction of the Court cannot be waived, a party can

waive a matter relating to procedural jurisdiction of the

Court, and this is usually determined from reliefs sought in

the process - Mobil Prod. (Nig) UnLtd. v. LASEPA

(2002) 18 NWLR (Pt. 798) 1 SC.

In other words, irregularity in the exercise of jurisdiction

should not be confused with a total lack of

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jurisdiction - see Mobil Prod. (Nig.) UnLtd. V. LASEPA

(supra) wherein Ayoola, JSC, explained that-

Notwithstanding that, sometimes, the distinction

between substance and procedure is blurred, it is

generally accepted that matters (including facts),

which define the rights and obligations of the parties

in controversy, are matters of substance defined by

substantive law, whereas matters, which are mere

vehicles, which assist the Court ... in going into

matters in controversy or litigated before it, are

matters of procedure regulated by procedural law.

Facts, which constitute the cause of action, are

matters of substance and should be pleaded, whereas

facts, which relate to how a party is to invoke the

jurisdiction of the Court for a remedy pursuant to his

cause of action, is a matter of procedure outside the

realms of pleadings. This distinction was stated thus

in Halsbury’s law of England, Vol. 8(1), 4th Edition,

para. 1066:

Generally speaking, it may be said that substantive rules

give or define the right, which it is sought to enforce, and

procedural rules govern the mode or machinery by which

the right is enforced.

In this case,

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there is no question that contrary to his vehement stand,

the Appellant's Objection was basically a challenge to the

procedural jurisdiction of the Court rather than a challenge

to its substantive constitutional or statutory jurisdiction to

entertain the said Suit – see Adegoke Motors Ltd. V.

Adesanya (1989) 3 NWLR (Pt. 109) 250 SC.

His Objection was a complaint against the competence of

the trial Court to entertain the Suit because the Originating

Summons was not endorsed or marked as required by the

said Act and Rules, which touches on the procedural rules

that got Parties to the Court, and nothing whatsoever on

the facts that led to the cause of action or substance of the

Suit filed by the first Respondent. Any defect amounted to a

mere irregularity that can be waived by the Parties.

Was the said irregularity in this case waived? This Court

nailed this issue to the ground in Adegoke Motors Ltd. V.

Adesanya (supra), wherein it stated categorically that in

similar circumstances like this, the filing of a memorandum

of appearance, as was done in this case, constitutes a

waiver of any irregularity, and constitutes a submission to

the

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jurisdiction of the Court. In that case, Oputa, JSC, observed

-

A writ of summons (valid or invalid is immaterial at

this stage) was served on the Defendants. The

Defendants could, if they wanted to either:-

(i) Enter an appearance on protest; or

(ii) Enter a conditional appearance and;

(iii) Then file a Motion asking the Court seised of the

matter ... to set aside the purported Writ and the

purported service on the ground of essential

invalidity of both Writ and Service.

The Defendants did not do this. Rather they entered

an appearance through their Solicitor... This implied

that they wanted and intended to contest the case of

the Plaintiffs.

In this case, the Appellant entered a conditional

appearance and also filed a Counter-Affidavit, which means

he waived the irregularity that he complained of, and had

submitted to the jurisdiction of the Court.

The last question is whether he had any business objecting

in the first place? His address for service on the process

was in Kano, and he was served in Kano, within

jurisdiction. The second and third Respondents had their

addresses for service on the process at Abuja, outside

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jurisdiction, and by the said Order of substituted service,

they were both eventually served in Kano State, within

jurisdiction.

The second and third Respondents did not object or

complain; they submitted to the jurisdiction of the trial

Court, and kept quiet.

It is the Appellant, who was not affected by the service

within jurisdiction instead of outside jurisdiction, as

specified in the process, that took on the challenge and

fought the battle from the trial Court to the Court below,

and finally to this Court. Was he right to do so?

I will just say that it was none of his business, and my

response is supported by decisions of this Court - see

Chime V. Chime (supra), cited by first Respondent,

wherein this Court, per Wali, JSC, stated -

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It is not in dispute that neither 1st Respondent nor

the 3rd Respondent complained against non-service

of the Court processes... or any other order made. It

does not, therefore, lie in the mouth of the Appellants

to complain on their behalf. It is abundantly clear

that neither the 1st nor 3rd Respondents complained

against non-service of any Court process on him. The

Court of Appeal was perfectly right when it stated-

For a party to a suit to apply for the proceedings to be

nullified by reason of failure of service, where service

is a requirement, it must sufficiently be established

that he or she has not been served in respect of the

proceedings and that the order made therein affects

him. It is not --open to every party to the proceedings

to make such an officious complaint. If such

complaint is sustainable, it will yield startling results.

Thus, an aggrieved Plaintiff-- would be enabled to

appeal against a judgment on the technical ground

that a party to the proceedings has not been served

same process.

In this case, the Appellant is not a Knight in shining armor,

and the second and third Respondents did not need him to

fight their battles. The irony is that the second Respondent

that he was fighting for has filed briefs supporting

decisions of the two lower Courts against him.

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In the circumstances, it will be a disservice to the justice

system to allow the Appellant get away with what did not

concern him at all, and it goes without saying that this

issue is resolved against him.

The next main issue is whether the trial Court had

jurisdiction over this matter. On this score, the Court below

held as follows -

Reading through the Originating Summons of the

first Respondent, it is clear that the gravamen of the

question submitted for determination of the lower

Court was an inquiry into the propriety or validity of

the action of the third Respondent, INEC, in

publicizing, recognizing and including the name of

the Appellant and/or dealing with the Appellant as the

candidate of the second Respondent (APC) to contest

the election into Kano State House of Assembly

representing Gabasawa constituency of Kano State

scheduled to take place on 28/2/2015 when he, first

Respondent, was the winner of the

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primary election conducted by the second

Respondent. In Gwede v. INEC (2014) 18 NWLR (Pt.

1438) 56 the Supreme Court stated that the

publication of the list of candidates to contest an

election by the electoral body was an administrative

action. Thus, the question was a challenge to an

administrative action of an agency of the Federal

Government. It was the case of the First Respondent

in the affidavit in support of the Originating

Summons - - that he scored the majority of the lawful

votes cast at the primary election held by second

Respondent on 2/12/2014 in Gabasawa LGA - - for the

purpose of presenting a candidate of the party for

election - - to represent Gabasawa Constituency - -

but rather than submit his name to the third

Respondent as the candidate of second Respondent

(APC) to contest the election - - scheduled to take

place on 28/2/2015, second and fourth Respondent

substituted his name with the name of the appellant

and consequent on which the third Respondent

published the name of the Appellant as the candidate

for the election. The first relief sought by the first

Respondent was a mandatory order against the third

Respondent, the independent

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National Electoral commission, to include his name in

the list of candidates while the third relief was for an

injunctive order against the second, third and fourth

Respondents restraining them from recognizing,

publishing or dealing with the Appellant as a

candidate representing Gabasawa Constituency of

Kano State in the scheduled election. The third

Respondent is an agency of the Federal Government

and the Supreme Court held in similar circumstances

in the case of Gbileve v Addingi (2014) 16 NWLR (Pt.

1433) 394 that such a suit was properly instituted in

the Federal High Court. This Court is bound by this

decision of the Supreme Court and it hereby resolves

that the lower Court had jurisdiction to entertain the

action of the first Respondent.

It is settled that is the Plaintiff's claims that determine

jurisdiction; that is to say, it is the claim before the Court

that has to be looked at to ascertain whether it comes

within the jurisdiction conferred on it - see Elelu-Habeeb

V. A.G. Fed. (2012) 13 NWLR (Pt. 1318) 423 SC.

In this case, the first Respondent claimed the following

three reliefs -

1. An order of this Hon. Court directing the

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3rd Defendant to publicize, recognize and include the name

of the Plaintiff as the 1st Defendant's rightful candidate for

Gabasawa Constituency of Kano State House of Assembly

in the general election scheduled to take place on

28/2/2015.

2. A declaration of Court that the Plaintiff is the rightful

candidate of the first Defendant who will represent

Gabasawa Constituency of Kano State House of Assembly

in the general election scheduled to take place on

28/2/2015, having scored the majority of votes cast at the

primary election conducted by the 1st Defendant on

2/72/2014 in Gabasawa Local Government Area of Kano

State for the purpose of producing a candidate of the first

defendant (A.P.C) for the election.

3. An order of Court restraining the Defendants either

through their agents, privies or whosoever claiming on

their behalf, from recognizing, treating, publishing, listing

or considering the name of 2nd Defendant as the 2nd (sic)

Defendant's candidate to represent Makodo Constituency

(sic) of Kano House of Assembly in the general election

scheduled to take place on 28/2/2015.

The Appellant addressed this issue from pages 17 to 23 of

his brief,

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and he is saying that since first Respondent's grievance is

against the nomination or substantially arises from the

Party's primary election, it is the State High Court that has

jurisdiction to entertain the suit; that the trial Federal High

Court was wrong to assume jurisdiction, entertained and

decided the matter; and that the Court below was equally

wrong to hold to the contrary on the face of the outstanding

position of this Court in PDP v. Sylva (2012) 13 NWLR

(Pt.1316) 85.

The first Respondent says that his case at the trial Court is

that there was a primary election conducted by second

Respondent, which was duly monitored by third

Respondent, INEC, and that he scored majority of the

lawful votes cast at the primary election, but third

Respondent refused to recognize and treat him as the

winner and publish his name; and where a Party's claim is

against an administrative action of the Federal Government

or its agency, the proper venue to ventilate his grievance is

Federal High Court.

The second Respondent argued that the reliefs are directed

against the third Respondent’s decision to publish the name

of the Appellant, who the first

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Respondent said is not a candidate of the second

Respondent, who complied with the Guidelines and Rules of

the second Respondent for the primary election; and the

reliefs fall squarely within the jurisdiction of the Federal

High Court.

This issue has been flogged and over-flogged in political

cases decided by this Court, and the position is pretty well-

settled that any dissatisfied contestant at the primaries is

now empowered by Section 87(9) of the Electoral Act, 2010

(as amended) to ventilate his grievance at the Federal High

Court or High Court of a State or of the Federal Capital

Territory - Lokpobiri V. Ogola & Ors (2015) 10-11

MJSC 74, Jev V. lyortyom (2014) All FWLR (Pt. 747)

749 SC.

In this case, the concurrent findings of the two lower

Courts on this issue cannot be faulted. The trial Court was

right to take on the matter, as the first and third Reliefs,

fall within its jurisdiction.

The final issue is whether the Suit was rightly commenced

by Originating Summons and the Court below rightly found

on affidavits evidence before it, including the question of

forgery. The issue arose from the reasoning and conclusion

of the Court below, as

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follows-

The second and fourth Respondents deposed to two

Counter Affidavits. In their first Counter Affidavit

deposed to by the Assistant Legal Adviser of the

second respondent, they admitted that the second

Respondent conducted primary election into the Kano

State House of Assembly Gabasawa Constituency and

that both the first Respondent and Appellant

participated in the primary election and that the first

Respondent scored 216 votes while the Appellant

scored 32 votes. However, in the second Counter

Affidavit deposed to by the fourth Respondent, they

changed tune and deposed that no primary election

was conducted by the second Respondent into the

House of Assembly Gabasawa Constituency on

2/12/2014. The Appellant in his Counter Affidavit

deposed that the second Respondent did not conduct

primary election on 2/12/2014 for Gabasawa

Constituency and that no single vote was cast on that

day and that the result sheet attached by the first

Respondent was a forgery as it did not emanate from

the second Respondent and that the report of the

third Respondent on the primary election, was a

concocted result forged on the letter head of the third

Respondent. What

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is clear - - is that the second and fourth Respondents

presented two materially contradictory pieces of

evidence on the issue of conduct of primary election

for the Gabasawa Constituency on 2/12/2014 before

the lower Court through their witnesses and both

pieces of evidence were given on oath. It is settled law

that the consequence of a party presenting such

materially conflicting evidences is that the case of the

party is destroyed and cannot be believed - - - It is

settled law that where a party is shown to have

presented on oath two pieces of evidence which are

materially inconsistent, such a party will be regarded

as unreliable and the totality of his evidence will be

rejected by the Court- - - The second and fourth

Respondents thus had no credible evidence before the

lower Court with regards to the deposition of the

Appellant, his allegation that the result sheet of the

primary election exhibited by first Respondent was a

forgery because it did not emanate from the second

Respondent and that the report of the primary

election of the third Respondent was forged on the

letter head of the third Respondent were

documentary hearsay evidence.

The Appellant

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never said he was an official or employee of either the

second or third Respondent as he did not state in his

affidavit the name of the official or of the person in

the employment of the second Respondent that

informed him that the result sheet did not emanate

from them and or the name of the official or of the

person in the employment of the third Respondent

who told him that the report was forged on their

letter head. This is particularly more so as second

Respondent presented no credible evidence before

the lower Court to challenge the authenticity of the

result sheet and the third Respondent, on its part,

confirmed the authenticity of its report on the

primary election in its counter affidavit. The

deposition of the Appellant on the issue of forgery

was, thus, not credible and admissible evidence. The

result sheet and report of the third Respondent on

the conduct of the primary election supported the

assertion of the first Respondent and of the third

Respondent on the conduct of the primary election by

the second Respondent on 2/12/2014 as against the

bare assertion of the Appellant that no primary

election was conducted. It is clear that there were no

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material conflicts in the credible evidence contained

in the Affidavit of the Parties before the lower Court

on material facts necessary for the resolution of the

issue identified by the lower Court to have warranted

the need for oral evidence. There was, thus, no

obligation on the lower Court to have called for oral

evidence to resolve any conflict. The lower Court was

correct in resolving the issue on the strength of the

affidavit evidence before it. The third issue for

determination is resolved against the Appellant. In

the final analysis, it is the finding of this Court that

the appeal of the Appellant lacks merit and it is

accordingly dismissed. The Cross-Appeal of the third

Respondent is meritorious and it is hereby allowed.

The Judgment of the Federal High Court, Kano

Judicial Division in suit No. FHC/KN/CS/17/2015

delivered by Hon. Justice Fatun O. Riman on

11/3/2015 is hereby affirmed save for the portion that

upheld the right of the Appellant to raise and canvass

the issue of non-compliance by first Respondent with

provisions of Order 6 Rule 13 of the Federal High

Court Rules 2009 and with Section 97 of the Sheriffs

and Civil Process Act.

The

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Appellant's contention is that in the circumstances of this

case, Originating Summons is not the appropriate means of

commencing and determining the Suit; and that even if the

said Counter-Affidavits were contradictory, the proper

thing to do was to call oral evidence.

He also submitted that the Court below preferred

documentary evidence but what is required or suffice at

this stage is oral evidence; that the issue of forgery is an

example brought out to expound the conflict in Affidavit

evidence; and the claim is declaratory in nature, so must be

brought by writ of summons; not originating summons.

The first Respondent submitted that the Court below was

right since the Appellant failed to particularize the

allegation of forgery; that second and fourth Respondents

did not successfully challenge his case so as to warrant

calling oral evidence as they are in a better position to

challenge the validity of the evidence before the Court.

He argued that his case was the one supported by

documentary evidence as rightly pointed out by the Court

below, but the Appellant failed to annex a single document

emanating from second and third Respondents to

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evidence that there was primary election conducted on

8/12/2014 as opposed to him, who placed concrete

evidence of his victory in the primary election that was

conducted or 2/12/2014.

The second Respondent submitted that contrary to his

position, the Court below considered the import of the said

Further and Better Counter Affidavit filed on behalf of

second and fourth Respondents, and since they did not

appeal against same, they are bound by it; that the

Appellant failed to discharge on him to prove his allegation

of forgery beyond reasonable doubt; and he also had a duty

to show, particularly in the face of documentary evidence

presented by the first and third Respondents that the

primary election never held.

By Order 3 Rule 1 (1) of the 2009 Rules, Civil proceedings

at the trial Court may be commenced by Writ or

Originating Summons, etc. As the first Respondent said,

most, if not all, the pre election matters that come to this

Court are initiated by Originating Summons but the

Appellant contends that the writ of Summons is more

appropriate.

The distinction between two modes of commencing an

action boils down to whether there is a serious

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dispute as to facts involved.

Where there is a serious dispute as to facts, a Writ of

Summons must be issued. In other words, where it is

evident from the Affidavit evidence before the Court that

there would be "an air of friction" in the proceedings, an

Originating Summons is no longer appropriate - see NRC

V. Cudjoe [2008] 10 NWLR (Pt.1095) 329 and Famfa

Oil Ltd. V. A.-G. Fed. (2003) 18 NWLR (Pt. 852) 453,

where this Court held-

The very nature of an Originating Summons is to

make things simpler for hearing. It is available to any

person claiming interest under a deed, will or other

written instrument whereby he will apply by

Originating Summons for the determination of any

question of construction arising under the instrument

for a declaration of his interest - - It is a procedure

where the evidence in the main is by way of

documents and there is no serious dispute as to their

existence in the pleading of the parties to the suit. In

such a situation, there is no serious dispute as to

facts but what the Plaintiff is claiming is the

declaration of his rights. lf there are serious disputes

as to facts then a normal Writ must be taken out not

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Originating Summons – Doherty v Doherty (1968)

NMLR 241.

In effect, Originating Summons is a procedure wherein the

evidence is mainly by way of documents and there is no

serious dispute as to their existence in the pleadings - see

Famfa Oil V. A-G. Fed. (supra).

It is usually heard on affidavit evidence and involves

questions of law rather than disputed issues of fact - see

Inakoju V. Adeleke (2007) 4 NWLR (Pt. 1025) 423,

wherein Tobi, JSC, explained that -

In Originating Summon, facts do not have pride of

place in the proceedings. The cynosure is the

applicable law and its construction by the Court. The

situation is different in a trial 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.

Facts may be inconsequential in proceedings commenced

by way of Originating Summons, which are determined on

affidavit evidence, but it is important that conflicts in the

affidavits

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are not glossed over - see Gbileve V. Addingi (supra),

where this Court affirmed the legal position stated by

Nwodo, JCA (of blessed memory), as follows –

Where proceedings in a Court are by affidavit

evidence, it is important that conflicts in such

affidavits are not glossed over. The Court is enjoined

to look at the nature of the conflict. When facts are

deposed in an affidavit, the purpose of counter-

affidavit is to contradict those facts and not merely

set up a distinct fact as defence. Where the conflict

arising from affidavit and counter affidavit

depositions are not on material issues, the Court

calling for oral evidence become unnecessary. ln

effect, where the conflicts are not material to the case

or where the facts are inadmissible in evidence, the

Court should not be saddled with the responsibility of

calling oral evidence to resolve the conflict -

Furthermore where conflicting evidence can be

resolved from documentary evidence, the need to call

oral evidence becomes unnecessary.

The bottom line, as far as this case is concerned, is the

observation - "when facts are deposed to in an affidavit, the

purpose of a counter- affidavit is

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to contradict those facts and not merely set up a distinct

fact as defence". In this case, the first Respondent, as the

Plaintiff, averred as follows in paragraphs 23-29 of his

supporting Affidavit -

23. That all the Defendants were fully aware that I am the

only declared winner in the primary election for Gabasawa

Constituency of Kano State House of Assembly conducted

by 1st Defendant in Gabasawa Local Government Area on

the 2/12/2014.

24. That I have applied for certified true copy of the Report

of the said primary election from the 3rd Defendant. A

copy of the said Report is herewith annexed and

marked as Exhibit I.

25. That on (sic) 1st Defendant received and accepted

Exhibit I.

26. That the 1st Defendant’s refusal to submit my name to

3rd Defendant was a ploy to favor some party members

without following due process.

27. That there is no any communication in whatever form

from any of the Defendants against my candidature to date.

28. That I am the only duly nominated candidate of the 1st

Defendant for Gabasawa constituency of Kano State House

of Assembly.

29. That I am still alive and I have not withdrawn nor am I

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incapacitated by any means.

The first Respondent also annexed thereto - the Result

sheet for Party Primaries for State House of Assembly with

his name on it as the declared winner having scored the

highest number of votes cast.

The second and fourth Respondents, as the first and fourth

Defendants, filed a Counter-Affidavit deposed to by "Nura

Zubair", wherein he averred - "the 1st Defendant conducted

primary election"; that the "1st Defendant forwarded the

name of the Plaintiff" to INEC and that the "Plaintiff is the

rightful candidate for the election''.

The same second and fourth Respondents later filed a

Further and Better Counter Affidavit, wherein fourth

Respondent averred –

1. That l am the 4th Defendant in this Suit.

2 That I am the Chairman of the APC Kano, the 1st

Defendant in this Suit.

3. That I have gone through the Counter Affidavit deposed

to by Nura Zubair an Assistant Legal Adviser of the 1st

Defendant on behalf of the 1st defendant and myself.

4. That I did not as the Chairman of the 1st Defendant give

the said Nura Zubair authority to depose to the content of

the Counter Affidavit as they do not represent the true

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position of facts.

5. That I as the Chairman of the 1st Defendant know as a

fact no primary election into the House of assembly of

Gabasawa Constituency was conducted by the 1st

Defendant on the 2nd December, 2014.

6. That the 1st Defendant did not send the name of anybody

to the 3rd defendant in respect of the said Gabasawa House

of Assembly Primary election.

7. That the counter affidavit deposed to by Nura zubair was

done without my consent and knowledge and that of the 1st

Defendant because of breakdown in communication.

8. That paragraph 3 to 7 of this further and better affidavit

represent the true position of facts in this case.

The Appellant, as the second Defendant, filed his Counter

Affidavit, wherein he averred as follows in paragraphs 8 to

11 thereof that-

8. Contrary to paragraph 11 of the Plaintiff's Affidavit

the 1st Defendant did not conduct any primary

election in Gabasawa Constituency.

1. Contrary to paragraph 12 and 14 of the Plaintiff’s

affidavit even, single vote was not cast on the said

2/12/2014 because the 1st Defendant did not conduct any

primary election in Gabasawa constituency.

2. The Plaintiff was

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not declared as the winner of the primary election and the

purported result sheet attached by the Plaintiff is not

an original result but forged result.

3. The result sheet exhibited by the Plaintiff does not

emanate from the 1st Defendant.

The third Respondent filed counter-Affidavits to Counter

Affidavit and Further and Better Counter-Affidavit of 1st

and 4th Defendants.

The third Respondent averred in paragraph 4 (c) of its

counter Affidavit to the 1st and 4th Defendants’ counter-

affidavit that the said “1st and 4th Defendants did not

forward the name of the plaintiff as its candidate to the 3rd

Defendant”. It further averred in paragraph 4 of its

counter-Affidavit to the further and Better Counter

Affidavit-

b) That the 1st defendant conducted its Primary election

into State House of Assembly Gabasawa Constituency on

2/12/2015 and was duly monitored by the 3rd Defendant.

c) That the 3rd Defendant on 25/12/2015 at its National

Headquarters Abuja received Form CF001 from the 1st

Defendant in the name of the 2nd Defendant as its

candidate standing for

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election into State House of Assembly Gabasawa

Constituency. The said Form CF001 is hereby annexed

and marked as Exhibit A3.

So, on one side of the divide are depositions by the first

Respondent and third Respondent that are supported by

documentary evidence, and on the other side of the divide

is the Appellant's bare assertion that the second

Respondent did not conduct any primary election. The

second and fourth Respondents, who should have clarified

the issue of whether there was a primary election or not,

failed to do so, and instead, they took divergent positions in

their Affidavit evidence.

As the first Respondent rightly submitted, the said

Respondents did not apply to have the evidence of Nura

Zubair discountenanced, and allowed the trial Court to be

left with the contradictory evidence that the primary

election took place and that it was NOT conducted.

Apart from the fact, as the first Respondent submitted, that

it is "logically inconceivable" for the Party to refuse to hold

the primaries, they cancelled themselves out, and their

evidence was worthless.

The law insists that where there are material contradictions

in the evidence

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adduced by a Party, the Court is enjoined to reject the

entire evidence as it cannot pick and choose which of the

conflicting version to follow - Kayili V. Yilbuk & Ors

(2015) LPELR -24323(SC).

A piece of evidence is contradictory to another when it

asserts or affirms the opposite of what that other asserts.

Put another way, evidence contradicts evidence, when it

says the opposite of what the other evidence says, not on

just any point, but on a material point - Odunlami V.

Nigerian Army (2013) LPELR-20701(SC). In this case,

the first Respondent says the Party conducted the primary

election.

The second and fourth Respondents admitted that fact in

their joint Counter Affidavit but stated the opposite in their

Further and Better Counter Affidavit - that no primary

election was conducted. Without question, the Court below

was right to reject the evidence.

The Appellant alleged in his Counter - Affidavit that the

Result Sheet of the said primary election exhibited by the

first Respondent was a forgery because it did not emanate

from second Respondent, and that the third Respondent's

Report was also forged. However Section 115 (3) and (4) of

the

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Evidence Act, 2011, provides that -

(3) When a person deposes to his belief in any matter

of fact, and his belief is derived from any source other

than his personal knowledge, he shall set forth

explicitly the facts and circumstances forming the

ground of his belief.

(4) When such belief is derived from information

received from another person, the name of his

informant shall be stated, and reasonable particulars

shall be given respecting the informant, and the time,

place and circumstances of the information.

Obviously, the Appellant did not make out a genuine

allegation of forgery to warrant an order for oral evidence

for him to prove same - how did he get to know that the

said two documents were forged?

If someone told him, what are the person's particulars?

What are the details - the time, place, and circumstances of

the said information? There was nothing - no particulars to

substantiate the allegation.

Obviously, the Appellant's disagreements with the decision

of the Court below are of no substance, and it's sometimes,

an attempt to turn the law on the head. Take for instance,

his argument that the Court below was wrong to rely on

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documentary evidence; not oral.

It is an elementary principle that documentary evidence is

used as a hanger to test veracity of evidence, whether oral

or by affidavit - see Gbileve V. Addingi (supra), Kimdey

V. Mil. Gov. Gongola (1988) 2 NWLR (Pt.77) 445 and

Fashanu V. Adekoya (1974) 4 SC 83. Thus, documentary

evidence is a hanger to base other pieces of evidence.

In political cases, the only proof of winning of an election is

the election result duly issued; mere averments cannot

stand up to that. The Court below was right to place a

greater value on documentary evidence, which bears

eloquent testimony to what happened - See Aiki V. ldowu

(2005) 9 NWLR (Pt 984) 47, wherein it was observed-

Documents when tendered and admitted in Court are

like words uttered and do speak for themselves. They

are even more reliable and authentic than words from

the vocal cord of man because they are neither

t rans ient nor sub jec t to d i s tor t ion and

misinterpretation but remain permanent and

indelible through the ages. The documents bear

eloquent testimony to what happened.

In this case, the first and third Respondents annexed

documentary evidence to their

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respective Affidavit and Counter-Affidavits, which support

the assertion of both Respondents that a primary election

was conducted, and that the first Respondent won the said

election.

The Court below was, therefore, right to conclude that

there were no material conflicts in the credible evidence

contained in the Affidavits of the Parties before the trial

Court on the material facts necessary for the resolution of

the issue the trial Court identified to have warranted the

need to call oral evidence to resolve any conflict.

The finding of the Court below on this issue cannot be

faulted As it put it "the trial Court was correct in resolving

the issue on the strength of the affidavit evidence before it"

l agree wholeheartedly.

The end result is that this Appeal lacks merit in its entirety,

and it is hereby dismissed. The Judgment of the Court

below is affirmed. Each Party will bear their own costs.

IBRAHIM TANKO MUHAMMAD, J.S.C.: I read before

now the judgment just delivered by my learned brother,

Augie, J.S.C. I agree with the reasoning and conclusion that

the appeal lacks merit and it should be dismissed. I dismiss

the appeal and abide by orders

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made in the lead judgment.

MARY UKAEGO PETER-ODILI, J.S.C.: I am in complete

agreement with the judgment just delivered by my learned

brother, Amina Adamu Augie JSC and to place on record

my support for the reasoning. l shall make some comments.

During the Kano State High Court strike, the 1st

respondent (as plaintiff) filed this suit before the Federal

High Court, Kano by way of originating summons, claiming

that he was the winner of the 2nd respondent’s Primary

election and must be the candidate to be recognized for the

election. The 3rd respondent followed the 1st respondent’s

position.

On the other side, the 2nd (APC) and 4th (Party chairman)

respondents maintained that there was no primary election

at all and that the results being waved by the 1st and 3rd

respondents were forged.

FACTS

Both the appellant and the 1st respondent participated in

the primary election conducted by the 2nd respondent on

the 2nd day of December, 2014 which was duly monitored

by the 3rd respondent. The primary election was for the

selection of a candidate to represent the Party as its

candidate for Gabasawa Constituency of the Kano State

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House of Assembly in the 2015 general election. The 1st

respondent won the said primary election by scoring 216

votes against the appellant who only scored 32 votes. The

3rd respondent recognized the name of the appellant as the

candidate for Gabasawa Constituency of the Kano State

House of Assembly.

The 1st respondent was left with no option than to

approach the Court for redress. He approached the Federal

High Court, Kano Judicial Division, hereinafter called "the

trial Court". The 1st respondent’s question for

determination before the trial Court was whether the 3rd

respondent can publicize, recognize and include the name

of the appellant or deal with him as the candidate of the

2nd respondent (APC) to contest election into Kano State

House of Assembly representing Gabasawa Constituency of

Kano State scheduled to take place on 28th day of

February, 2015 the 1st respondent having scored the

majority of the lawful votes cast at the primary election

held by the 2nd respondent on the December, 2014 in

Gabasawa Local Government Area of Kano State for the

purpose of presenting a candidate of the party for election

into Kano State House of Assembly to

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represent Gabasawa Constituency of Kano State."

The trial Court found as a fact that there was a valid

primary election conducted by the 2nd respondent and duly

monitored by the INEC directed the said INEC to consider,

recognize and treat the 1st respondent as duly nominated

candidate of the 2nd respondent in the general election for

Gabasawa Constituency of Kano State House of Assembly.

At the trial Court, issue Pertaining to non-compliance with

Section 97 of the Sherriff and Civil Processes Act was

raised by the appellant after he had filed all his necessary

and requisite Court Processes.

The appellant was residing within the jurisdiction of the

trial Court at the time of the filing and service of the

originating processes and he was equally served within the

jurisdiction. All other respondents were served in Kano

within the jurisdiction. The 2nd and 4th respondents were

served through the Kano State Chapter Legal Adviser (the

current Hon. Attorney General of Kano State) while the 3rd

respondent was served through its Kano office. The 2nd

and 4th respondent did not file any application to challenge

the service or any purported irregularity of

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the trial Court. The appellant, who was served within

jurisdiction, was not affected in any way by the purported

non-compliance with Section 97 of the Sheriff and Civil

Process Act.

The appellant dissatisfied with the decision of the trial

Court appealed to the Court of Appeal "hereinafter referred

to as the lower Court". On the other hand, the 1st

respondent cross-appealed against the portion of the

judgment of the trial Court which said the appellant can

raise the issue of non-compliance with Section 97 of the

Sheriff and Civil Processes Act. The lower Court dismissed

the appellant’s appeal and allowed the 1st respondent's

cross appeal. The appellant has now appealed to this Court

against the concurrent findings of the two lower Courts.

The learned counsel for the appellant, Nureini Jimoh Esq on

the 1st day of February, 2017 date of hearing adopted the

brief of argument of the appellant filed on the 7/8/2015 and

reply briefs to the briefs of 1st and 2nd respondents

respectively filed on the 25/11/2016 and 16/17. He distilled

five issues for determination which are stated hereunder,

viz:

1. Whether the lower Court was right to have held

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that leave to issue the originating summons and leave

to mark same for service outside jurisdiction are not

necessary, not mandatory, has been waived by 2nd

and 3rd respondents and cannot be raised by the

appellants at all. (Ground i to iv.)

2. Whether the lower Court rightly held that issue of

substituted service and personal service was not

raised both at the trial Court and before the lower

Court, and indeed the issue of mode of service is

phantom, Esoteric and not real? (Grounds v and vi)

3. Whether the lower Court rightly ignored the failure

to mark the summons as "concurrent" and trial

Court’s non-consideration of the "Further and Better

Counter-Affidavit in this suit. (Grounds ix & x)

4. Whether the lower Court was right to hold that the

trial Federal High Court was competent and did

competently assume jurisdiction in this suit"

(grounds vii & viii)

5. Whether in the circumstances of this case, the suit

was rightly commenced by originating summons and

the lower Court rightly found on the affidavit before it

including issues of forgery. (Grounds xi, xi, xiii, xiv

and xv).

Usman Umar Fari Esq. of counsel for the 1st

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respondent adopted his brief of argument filed on

11/5/2016 and deemed filed on 1/11/2016. He formulated

five issues for determination of the appeal which are thus:

1. Whether in the circumstances of this case the leave

of the trial Court to issue and mark the originating

summons which was served jurisdiction on the 2nd

and 3rd respondents was necessary and whether the

appellant can raise same. (Grounds I, II, III. IV)

2. Whether the lower Court was right when it held

that the appellant did not raise the issue of the

validity of the order of substituted service before the

trial Court.

3. Whether in the circumstances of this case there

was failure from the part of the 1st respondent to

have marked the originating summons as concurrent

(Grounds XIV)

4. Whether the trial Court (Federal High Court) has

jurisdiction over this matter - (Grounds vii and viii),

5. Whether the lower Court was right when it held

that the trial Court was right when it decided the

matter before it based on the affidavit evidence

placed before it. (Grounds No x, xi, xii and xiii xv).

Learned counsel for the 2nd respondent, R. A. O. Adegoke

Esq. adopted its

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brief of argument filed on 12/1/2012 and he raised three

issues for determination of the appeal which are as follows:

1. Whether the lower Court was right when it held

that the originating summons was competent and

upheld the decision of the trial Court which dismissed

the appellant preliminary objection. (Grounds 1, 2, 3,

4, 5, 6, and 9 of the Notice of Appeal.)

2. Whether the lower Court was right when it held

that the trial Court rightly assumed jurisdiction in

this suit. (Grounds 7, 8 and 10 of the Notice of

Appeal)

3. Whether the lower Court considered the Further

and Better Counter Affidavit of the 2nd and 4th

respondents and rightly upheld the decision of the

trial Court that granted all the reliefs sought in the

originating summons. (Grounds 11, 12, 13, and 14 of

the Notice of Appeal).

Yusuf Asamah Kadiri Esq. of counsel for the 3rd respondent

adopted its brief of argument filed on 30/1/17 and deemed

filed on 1/2/17. He adopted the issues as contained in the

appellant’s brief of argument and restated the impartiality

of the 3rd respondent as guided by the admonition of this

Court inA.G. Federation v Abubakar (2007) 10 NWLR

(Pt.

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1041) 1.

Mrs. H. O. Ben Umar of counsel for the 4th respondent

adopted her brief of argument filed on the 16/11/2017. She

adopted the issues as crafted by the appellant and sought

to keep within the boundaries on the jurisdictional point in

the dispute.

ISSUE 1, 2 AND 3

These ask the questions whether leave to issue originating

summons, leave to serve same and mark same for service

outside jurisdiction are neither necessary nor mandatory

and waived by 2nd and 3rd respondents and cannot be

raised.

Also whether the issue of substituted service and personal

service was not raised at the two Courts below.

Again if the lower Court rightly ignored the failure to mark

the summons as "Concurrent" and the trial Court’s non-

consideration of the further and Better Counter-Affidavit in

this suit?

Canvassing the standpoint of the appellant, learned counsel

contended that the decision of the Court below cannot be

supported in fact and law. That before a party would be

granted leave to serve and issue the originating process for

service out of jurisdiction there shall be affidavit or other

evidence stating that in the belief of the deponent

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the plaintiff had a good cause of action and showing in

what place or country the defendant is or probably may be

found and the grounds upon which application is made. He

cited Section 9 of the Federal High Court Act: Order 56

Rule 8 of the Federal High Court (Civil Procedure) Rules

2009; Order 6 Rule 14 of the Federal High Court (Civil

Procedure) Rules 2009; Owners of Mv "Arabella" v NAIC

(2008) 11 NWLR (Pt. 1097) 182: Nwabeze & Anor. v

Justice Obi-Okoye (1988) 4 NWLR (Pt. 91) 664.

That leave to issue and serve are both coterminous,

mandatory and condition precedent to the exercise of the

Court's jurisdiction on the defendants.

Going on further it was submitted for the appellant that

there is no dispute that summons originally meant for

service in FCT, Abuja outside jurisdiction of the Federal

High Court, Kano but the summons does not contain such

endorsement. He referred to Section 97 of the Sheriffs and

Civil Process Act.

That this case at hand is strictly and mainly an objection to

the competency of the suit premised on the ground that the

originating summons was neither endorsed nor marked as

required by the Sheriffs and Civil Process

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Act.

Learned counsel for the appellant further contended that

good service, if at all as in this case cannot invalidate a

valid process. That the parties concerned cannot waive the

fatal non-compliance with the statutory mandatory

Provision of Section 97 of the Sheriffs and Civil Process

Act. He cited Oodua v Talabi (1997) 10 NWLR (Pt.

5231) 1.

That the issue of the competence of the appeal and

jurisdiction of Court can be raised by any party and not

necessarily by the Party who raised it at the lower Court.

He cited Elugbe v Omokhafe (2004) 11 - 12 SC 60 at

65; Mobi Producing Nig. Unlimited & Anor v Monokpo

& Anor (2003) 12 SC (Pt. 11) 50.

The appellant also questioned the non-consideration of the

issue of substituted service which went to the competence

of the process and impugned on the appellants’ right to fair

hearing as the Court is obligated to tackling all issues

placed before it.

He cited Korun Ltd v International Trust Bank Plc

(2010) LPELR - 4408; Kida v Ogunmola (2006) 13

NWLR (Pt. 997) 377 at 399: Abacha v Kurostic Nig

Ltd. (2014) LPELR - 22703 at page 36 etc.

In responding, learned counsel for the 1st

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respondent stated that the trial Court was right when it

held that the Federal High Court Rules 2009 did not make

provision for leave before issuance of writ of summons

which will be served out of jurisdiction. He cited Ault

Wiborg (Nig) Limited v Nibel Industries Ltd (2010) 5 -

7 MJSC (Pt. III) 155.

That the appellant cited Section 97 of the Sheriff and Civil

Process Act out of context. That the appellant lacks the

locus standi to challenge the order of the trial Court

ordering service on the 2nd and 3rd respondents. He

referred to Babatunde v Olatunde (2000) 2 NWLR (Pt.

646) 568; Chime v. Chime (2001) FWLR (Pt.39)1457

at 1470.

It was contended for the 1st respondent that these issues

now raised are not raised in any affidavit and so cannot be

considered as a valid objection.

He cited Ishola Balogun Ketu & Anor. V. Chief Wahabi

Onikoro & Ors (1984) 10 SC 265 at 267; Abiodun v

A.G. Federation (2007) 15 NWLR (Pt 1057) 359.

The learned counsel for the 2nd respondent went along the

line of reasoning of the 1st respondent and that the

appropriate parties were served by order of the trial Court

and no appeal against the order directing

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substituted service and no leave to serve outside

jurisdiction required. He cited B. B. Apugo & sons Ltd v

OHMB (2016) 13 NWLR (Pt. 1529) 206 at 248.

The learned trial judge held thus:

"It is obvious from the case of Touton Sa v Grimaldi

Compagnia Di Nargo Zioni Spa (2011) 4 NWLR (Pt.

1236) 1 and Agip (Nig) 238 relied on by counsel for

the submission that counsel to the appellant confused

the provisions of the Federal High Court (Civil

Procedure) Rules 2009. Order 6 Rule 12 (1) of the

2000 Rules stated very clearly that "No Writ which, or

notice of which, is to be served out of jurisdiction

shall issue without leave of Court." This Court is not

aware of any such corresponding Provision in the

2009 Rules and none was referred to by counsel to

the appellant. Order 6 Rules 13 to 17 of the Federal

High Court (Civil Procedure) Rule 2009 talks about

leave to serve originating processes out of jurisdiction

and not leave to issue. The proceedings in this matter

were governed by the provisions of the Federal High

Court (Civil Procedure) Rule 2009 and there was no

obligation on the first respondent to obtain leave to

issue the originating summons it took

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out in this matter".

On its own part, the Court of Appeal or Court below

affirmed what the trial Court had done and stated as

follows:

"The appellant also canvassed the issue of the

invalidity of the Order of substituted service made by

the trial Court on the February 2015... The issue of

validity of the order of substituted service was also

not raised by the appellant in any of the processes he

filed and neither was it canvassed before the trial

Court. All that the appellant complained about was

that he was not served personally with the originating

processes and no that the order of substituted was

invalid".

The position of the appellant sure presents very curious

angles, firstly is the contention that the service of the

processes of the trial Court on the 2nd and 3rd respondent

in Kano is wrong even though that service was done in

accordance with the order of the trial Court of 6th

February, 2015. Secondly there was no challenge to that

Court order by either the appellant or any of the

respondents.

The stance of the appellant clearly goes against the basic

principle that orders of Court are deemed valid until set

aside by the same Court or

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on appeal. This position is well stated by this Court in the

case of Babatunde v Olatunde (2000) 2 NWLR (Pt.

646) 568.

"A judgment of a Court of competent jurisdiction

remains valid and binding, even where the person

affected by it believes that it is void, until it is set

aside by a Court of competent jurisdiction. The

position therefore is that a person who knows of a

judgment, whether null or void, given against him by

a Court of competent jurisdiction cannot be permitted

to disobey it. His unqualified obligation is to obey it

unless and until that judgment has been set aside."

That Order of 6th February 2015 issued by the trial Court

not having been attacked on appeal, cannot be properly

raised here as it creates the impression that an appeal can

validly lie from the High Court to the Supreme Court, by-

passing the Court of Appeal which is the appropriate forum

from which an appeal to the Supreme Court can validly be

brought. I rely on Sections 233, 241 and 242 of the

Constitution of Nigeria, 1999 (as amended).

As if that situation is not bad enough the appellant is crying

more than the bereaved in championing the case of 2nd

and 3rd

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respondents on their being served outside jurisdiction.

Appellant has no locus standi to so do. See the case of

Chime v Chime (2001) FWLR (pt. 39) pg. 1457 @ 1470

para D -G. this Court held in the lead judgment per Wali

JSC (as he then was) as follows:

"For a party to a suit to apply for the proceedings to

be nullified by reason of failure of service, where

service is a requirement, it must sufficiently be

established that he or she has not been served in

respect of the proceedings...

In the instant case it was not open to the applicants

to argue that the proceedings be nullified on the

ground that the 3rd defendant was not served with

the originating summons.

It is to be reiterated that the appellant sees a fault in the

service of the process of the trial Court, he did not raise

that objection at that Court of first instance and the order

of substituted service of the trial Court was not challenged

on appeal which is the basis for what the appellant is

advancing herein in argument. The Court below saw

through what was at play and stated thus:

"It was not his case that the mode of service

shortchanged his ability to respond to the processes

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served on him. The appellant in fact filed his response

to the processes. The complaint of the appellant on

the issue of substituted service is thus phantom and

esoteric and not real. It will not be countenanced by

this Court."

It seems to me that the appellant is making out a new case

different from what was in the trial Court and at the appeal

stage in the Court below with a transformation of a new

vista herein. The appellant would not be assisted by the

judicial authorities he has cited as they have to be applied

to related facts and not across the board no matter what is

seen available.

The issues are therefore resolved against the appellant.

ISSUE NO 4

Whether the lower Court was right to hold that the trial

Federal High Court was competent and did competently

assume jurisdiction in this suit.

Nureini Jimoh Esq., Learned counsel for the appellant

submitted that by virtue of Section 87 (1) and (9) of the

Electoral Act, 2010 (as amended), a political party seeking

to nominate candidates for elections under the Act shall

hold primaries for aspirants to all elective positions. As

aspirant who complains that any of the

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provisions of the Act and the guidelines of a political has

not been complied with in the selection or nomination of a

candidate of a political party for election may apply to the

Federal High Court or State High Court or that of the

Federal Capital Territory for redress. Such a complaint

must come within the narrow compass of that the National

Executive Committee of the political party conducted a

primary election which he was an aspirant and that the

primary election was conducted in breach of specified

provisions of the Electoral Act or the party’s election

guidelines, learned counsel stated.

He cited Emenike v PDP (2012) 12 NWLR (pt. 1315)

556; Lado v CPC (2012) SCNJ 383 etc.

It was also submitted for the appellant that on the facts and

circumstances of this particular case the Federal High

Court lacks jurisdiction to entertain the suit because the

real question was whether there was a primary election at

all. See Salim v CPC (2013) 6 NWLR (Pt. 1351) 501;

Ohakim v Agbaso (2010) 19 NWLR (Pt. 1226) 237;

Adetayo v Ademola (2010) 15 NWLR (pt. 1215) 169 at

190.

That the proper forum was the Kano State High Court

where the territorial party

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and subject matter jurisdiction of the matter will be

properly taken. He relied on Kakih v. PDP (2014) 5 NWLR

(Pt. 1430) 374 at 411-414 and 417 and 433 etc.

In response, Usman Umar Esq. for the 1st respondent

submitted that the trial Federal High Court had the

jurisdiction to entertain the matter before it. He cited

Elelu-Habeeb v A. G. Federation (2012) 13 NWLR (pt.

1318) 423: Gwede v INEC (2014) 18 NWLR (Pt. 1438)

56; Ahmed v. Ahmed (2013) ALL FWLR (Pt.699) 1025

etc.

For the 2nd respondent, R. A. O. Adegoke Esq., contended

that the reliefs sought at the Court of trial were within the

Federal High Court and so it was right for that Court to

assume jurisdiction and entertain the matter.

In upholding the jurisdiction of the trial Court to entertain

the suit of the 1st respondent, the Court below stated as

follows:

"Reading through the Originating Summons of the

first respondent, in the instant case, it is clear that

the gravamen of the question he submitted for the

determination of the lower Court was on inquiry into

the Propriety and validity of the action of the third

respondent, Independent Electoral National

Commission, in publicizing,

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recognizing and including the name of the appellant

and/or dealing with the appellant as the candidate of

the second respondent (APC) to contest election into

Kano State House of Assembly representing

Gabasawa Constituency of Kano State scheduled to

take place on the 28th day of February, 2015 when he

the first respondent was the winner of the primary

Election conducted by the second respondent. In

Gwede v Independent National Electoral Commission

(2014) 18 NWLR (Pt. 1438) 56, the Supreme Court

stated that the Publication of the list of candidates to

contest on election by the electoral body was

administrative action of an agency of the Federal

Government."

What I see as the case of the 1st respondent as plaintiff is

that there was a primary election conducted by the 1st

respondent which was monitored by the INEC and that he,

1st respondent scored the majority of the lawful votes cast

at the said primary but the 3rd respondent refused to

recognize and treat him as the winner and publish his

name. That is that there was not a full compliance with the

Electoral Act and the 1999 Constitution of Federal Republic

of Nigeria. In respect to the Electoral Act I

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shall make reference to Section 87(10) thereof.

Section 87 (10) provides

"Notwithstanding the provisions of the Act or Rules of

a political party an aspirant who complains that any

of the provisions of this Act and the guidelines of a

political party has not been complied with in the

selection or nomination of a candidate of a political

party for selection, may apply to the Federal High

Court or the High Court of a State for redress".

From what was available to the trial Court, it was evident

that the matter fell squarely within Section 87(9) of the

Electoral Act and the Trial High Court vested with the

jurisdiction and the Court below had no difficulty in stating.

Therefore the case of Kakih v. PDP (2014) 7 - 7 MJSC. It

cannot assist the appellant as in that case there was no

evidence to warrant the invocation of Section 87 (9) of the

Electoral Act as the facts were outside the ambit of

accommodated issues. A similar misfortune fell with

holding onto the cases of Ahmed v. Ahmed (2013) ALL

FWLR (Pt. 699) 1025 and Gbelere v. Adeniji (2014)

LPELR - 22141

In the final analysis the two Courts below were right in

holding that jurisdiction enured

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to the Court of trial.

ISSUE NO 5

Whether in the circumstances of this case, the suit

was rightly commenced by originating summons and

the lower Court rightly found on the affidavit before it

including issues of forgery.

Learned counsel for the appellant contended that the issues

thrown up including the allegation of forgery were such

that there was need for oral evidence to resolve the

conflicts arising in the affidavit evidence. Also that credible

evidence of forgery were needed such that affidavit

evidence was not enough. Therefore commencing the

action by originating summons was not the correct way to

go but the suit ought to have been initiated by a Writ of

Summons.

He cited Kowa v Musa (2006) 5 NWLR (Pt. 872) 1 at

34: Aregbesola & Ors. v Oyinlola (2010) LPELR 3805;

Ndoma Egba v ACB Plc (2005) 7 SC (Pt. 111) 27 etc.

Learned counsel for the 1st respondent submitted that

there had not been a successful challenge to the case of the

1st respondent to warrant the calling of oral evidence. That

there was nothing available in the affidavit evidence of the

defendants at the Court of trial that were not effectively

answered and the

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establishment of the case of 1st respondent made. He cited

Livestock Feeds v Funtua (2005) ALL FNLR (Pt.286)

753 at 771; Atoka v Nwuche (2013) 3 NWLR (Pt.

1341) 337.

The 2nd respondent was of the same mind as 1st

respondent and that is that the Court below was right in

finding for the 1st respondent and no need for oral

evidence and that the Suit commenced by originating

summons was in order.

The Court below had held in respect to the affidavit

evidence presented by the 2nd and 4th respondents as

follows:

“What is clear from the above is that the second and

fourth respondents presented two materially

contradictory pieces of evidence on the issue of

conduct of primary election for the Gabasawa

Constituency on the 2nd day of December, 2014

before the lower Court through their witnesses and

both pieces of evidence were given on Oath. It is

settled law that the consequence of a party

presenting such materially conflicting evidence is

that the case of the party is destroyed and cannot be

believed”.

In respect to the affidavit evidence of the appellant and the

annexure in support therein of the averment, the Court

below held thus;

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"With regards to the deposition of the appellant, his

allegation that the result sheet of the primary

election exhibited by the 3rd respondent was a

forgery because it did not emanate from the second

respondent and that the report of the primary

election of the 3rd respondent was forged on the

letter head of the 3rd respondent were documentary

hearsay evidence. The appellant never said he was an

officer or employee of either the second or third

respondent and he did not state in his affidavit the

name of the official or of the person in the

employment of the third respondent who told him

that the result was forged on their letter head this is

particularly more so as the second respondent

presented no credible evidence before the lower Court

to challenge the authenticity of the result sheet and

the third respondent, on its part, confirmed the

authenticity of its report on the primary election in

its counter affidavit".

From the materials available in this matter there is no basis

I can see for deviating from commencing the action by

Originating Summons as nothing propelled testimony which

would have changed the texture of the process and made

the need

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for initiation of the suit by writ of summons imperative. The

matter as presented by the plaintiff/1st respondent was

straight forward with affidavit evidence and possible

documents exhibited sufficient to establish on the balance

of probabilities. Pleadings were clearly uncalled for not to

talk of calling of oral evidence since all the Court needed to

know or utilise to reach a decision one way or the other

were such that affidavit evidence would easily satisfy.

Of note is the fact that the Court below found and rightly so

that the two pieces jointly filed by the 2nd and 4th

respondent contradicted themselves. That situation does

not qualify as conflict in affidavit for which there would be

justification in calling for oral evidence of the deponents to

resolve the conflict. Such oral evidence in resolution of

conflict comes into play where it is conflict against the

other party not parties on one side of the divide. See cases

of Arjoy Ltd v AMS Ltd (2003) 4 NWLR (Pt.863) 425:

Gbileve & Anor. v Addingi & Anor.(2014) 16 NWLR

(Pt. 1433) 394.

Indeed there is no faulting what the Court below did that

commencing this matter by originating summons

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was in order and there was enough from the affidavit

evidence from which the issues including that of forgery

could be determined.

The issue is resolved against the appellant.

All the issues well settled against the appellant it is clear

from the forgoing and the better reasoning in the lead

judgment that this appeal lacks merit and I also dismiss it.

I abide by the consequential orders made.

KUMAI BAYANG AKA'AHS, J.S.C.: I was privileged to

read in draft the judgment of my learned brother, Augie

JSC in which he dealt exhaustively with the issue arising in

the appeal. I agree entirely with the resolution of the issues

and the conclusion that the appeal is bereft of merit and

should be dismissed. I equally dismiss the appeal.

PAUL ADAMU GALINJE, J.S.C.: I have had the privilege

of reading in draft the judgment just delivered by my

Learned brother, Amina Adamu Augie JSC and I entirely

agree with the reasoning contained therein and the

conclusion arrived thereat. My Learned brother has

admirably resolved all the issues submitted for

determination of this appeal, so much so that whatever I

say will amount to a mere repetition. The

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Appellant's case is built around the substituted service on

him and the improper service on the 2nd and 3rd

Respondents, The substituted service was affected on the

order of the trial Court against which there is no appeal.

That order which was made on the 6th of February 2015

remains valid and was property enforced.

A judgment or order of Court remains in force and binding

on the parties until it is set aside. Service of Court

processes may be a jurisdictional issue which can be raised

at any stage of a case. However when a trial Court has

determined and made pronouncement on that issue, a party

who is aggrieved must follow the right course that is appeal

challenging the pronouncement must go through the Court

of Appeal before a subsequent appeal from the Court of

Appeal can be heard and determined in this Court.

See Rossek v. ACB Ltd (1993) 8 NWLR (Pt. 312) 382,

S.233 of the Constitution of the Federal Republic of

Nigeria 1999, Babatunde v. Olatunde (2000) 2 NWLR

(Pt.646) 568.

The Appellant cannot in Law be allowed to raise the issues

of service on the 2nd and 3rd Respondents who have not

shown that they are aggrieved with the service of

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processes on them, as he has no locus standi to do so. See

Chime v. Chime (2001) FWLR (Pt. 39)1457 at 1470

Paragraphs D – G.

Finally the trial Court, by virtue of S.87 (9) of the Electoral

Act. has jurisdiction to hear and determine cases bordering

on whether primary elections are conducted in accordance

with party guidelines, Electoral Act and the Constitution.

The complaint before the trial Court was about the conduct

of primary election by the 2nd Respondent for the

nomination and/or selection of a candidate representing

Gabasawa Constituency of Kano State House of Assembly

for the 2015 general election. Clearly, the Federal High

Court has jurisdiction and competence to entertain the case

See Gbeleve v. Addingi (2014) 16 NWLR (Pt. 1433)

394.

With these few orders and the more elaborate reasons in

the lead judgment, which I adopt as mine, this appeal shall

be and it is hereby dismissed. I endorse all the

consequential orders made in the lead judgment including

order as to costs.

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