IN THE SUPREME COURT OF NIGERIA

HOLDEN AT ABUJA

ON MONDAY, THE 6TH DAY OF FEBRUARY, 2023.

BEFORE THEIR LORDSHIPS

CHIMA CENTUS NWEZE JUSTICE, SUPREME COURT

MOHAMMED LAWAL GARBA JUSTICE, SUPREME COURT
HELEN MORONKEJI OGUNWUMIJU JUSTICE, SUPREME COURT
ADAMU JAURO JUSTICE, SUPREME COURT
EMMANUEL AKOMAYE AGIM JUSTICE, SUPREME COURT

SC/CV/1689/2022

BETWEEN:

ALL PROGRESSIVES CONGRESS APPELLANT

AND

1. BASHIR SHERIFF
2. AHMED LAWAN
3. INDEPENDENT NATIONAL ELECTORAL

COMMISSION RESPONDENTS

1
 JUDGMENT
(Delivered by Chima Centus Nweze, JSC)
On June 22, 2022, the first respondent herein,
Bashir Sheriff, commenced an action, by way of
Originating Summons, at the Federal High Court,
Damaturu Judicial Division, against the appellant,
second and third respondents. He sought the
determination of four questions contained at pages 1-
155 of the Record of Appeal. They are as follows:

1. Whether in view of the provisions of Section

84 (5) (c) of the Electoral Act, 2022, and
having regard to the provisions of Article 20.4
of the Constitution of the All Progressives
Congress (APC) and the Guidelines for the
Nomination of Candidates for the 2023
General Elections issued by the first
defendant, it is lawful for the first defendant
to recognize any person other than the
plaintiff as its candidate, for Yobe North
Senatorial District for the position of Senate.
2. Whether in view of the provisions of Section
84 (5) (c) of the Electoral Act, 2022, and
having regard to the provisions of Article 20.4

2
 of the Constitution of the All Progressives
Congress (APC) and the Guidelines for the
Nomination of Candidates for the 2023
General Elections issued by the first
defendant, it is lawful for the first defendant
to change the name of the plaintiff who
emerged winner at the Primary Election
conducted by the first defendant for Yobe
North Senatorial District.
3. Whether in view of the provisions of Section
84 (5) of the Electoral Act, 2022, the first
defendant is not under a mandatory duty to
forward the name of the plaintiff as its
candidate for Yobe North Senatorial District to
the third defendant and the third defendant is
under a duty to accord him recognition and
publish his name as candidate for Yobe North
Senatorial District.
4. Whether in view of the provisions of Section
84 (5) (c) of the Electoral Act, 2022, and
having regard to the provisions of Article 20.4
of the Constitution of the All Progressives
Congress (APC) and the Guidelines for the
Nomination of Candidates for the 2023
General Elections issued by the first
defendant, the purported primary election
conducted on any date after the date of the
Presidential Primary Election is not invalid,
null and void the plaintiff who won the

3
 primary of May 28, 2022, having not
withdrawn his candidature.

In anticipation of favourable answers to these

questions, the first respondent sought the following

reliefs:

1. A DECLARATION that it is unlawful for the first

defendant to recognize the name of the
second defendant or any candidate other than
the plaintiff as its candidate for Yobe North
Senatorial District for 2023 Election.
2. A DECLARATION that it is unlawful for the first
defendant to change the name of the plaintiff
with the name of the second defendant in
respect of the primary election conducted by
the first defendant for Yobe North Senatorial
District (Zone C) in which the plaintiff
emerged winner and was so declared by the
first defendant.
3. A DECLARATION that any name of candidate
submitted by the first defendant to the third
defendant not being the name of the plaintiff
for Yobe North Senatorial District is unlawful,
null and void.

4
4. AN ORDER of mandatory injunction directing
the first defendant to accept and treat the
plaintiff as its candidate for Yobe Senatorial
District for 2023 Election.
5. AN ORDER of mandatory injunction directing
the third defendant to accept and treat the
plaintiff as the substantive candidate for the
first defendant for Yobe Senatorial District for
2023 Election.
6. AN ORDER for mandatory injunction
compelling the third defendant to accept and
treat the plaintiff as the substantive candidate
of the first defendant foe Yobe North
Senatorial District for 2023 Election.
7. AN ORDER of injunction restraining the
second defendant from parading himself as
the Candidate for the first defendant for Yobe
North Senatorial District for 2023 Election.
8. AN ORDER setting aside the purported
primary election conducted by the first
defendant on any date after the presidential
primary same not been conducted in
accordance with the provisions of the
Electoral Act, 2022, and the APC Guidelines
for the nomination of candidate for the 2023
General Elections issued by the first
defendant.

5
 The parties duly joined issues on the Originating
Summons. The affidavits and various objections of
the appellant were heard together with the
substantive matter in the Originating Summons. The
Preliminary objections of the appellant bothered on
jurisdiction of the trial court to entertain the first
respondent’s suit.

After taking arguments from the contending

parties and considering evidence before it, the trial
court, by its judgment delivered on September 28,
2022, found in favour of the first respondent. The trial
court held inter alia, that the first respondent’s action
is a pre-election matter and being a pre-election
matter, it falls squarely within its jurisdiction.
Consequently, the trial court granted all reliefs sought
by the first respondent under the Originating
Summons. The judgment of the trial Court is
contained at pages 768 - 817 of the Record of Appeal.
6
 Aggrieved by the decision of the trial Court, the
appellant appealed to the Court of Appeal,
(hereinafter, simply, referred to as “the lower court”].
The lower court, in its judgment at pages 967-1098
of the Record of Appeal, affirmed the decision of the
trial court.

Aggrieved by the decision of the lower court, the

appellant has now appealed to this court via a Notice
of Appeal filed on December 9, 2022.

The appellant filed his brief of argument on

January 11, 2022. Therein he raised six issues for
determination, to wit:

1. Whether in the circumstances of the appeal

before the court below, especially with the
allegation of fraud in the midst of other
irreconcilable conflicts in the numerous
affidavits, further affidavits filed by the parties
in support of their various conflicting
positions, the court below was correct to hold
that the trial court was right to have

7
 adjudicated the first respondent’s case on the
first respondent’s originating summons.
2. Whether the court below has the jurisdiction
to uphold the decision of the trial court which
held that the first respondent is the lawful
candidate for the appellant for Yobe North
Senatorial District 2023 General Election by
virtue of being the winner of the primary
election said to have been held on 28/5/2022,
when indeed the result of the said primary
election, the third respondent’s report and
other exhibits relating to the said primary
election in the first respondent’s suit clearly
showed that the said primary election which
was conducted by the first respondent (Bashir
Sheriff) himself along with three (3) other
persons under the name and style of planning
committee was conducted to nominate a
candidate for a non-existent constituency
called “Zone C” and the purported winner was
one Alhaji Bashir Sherriff, a name different
from the first respondent, (Bashir Sheriff)?
3. Whether their Lordships in the Court of
Appeal were correct to have held that the
appellant’s appeal before their Lordships is an
abuse of Court Process?
4. Whether the Court below has the jurisdiction
to affirm the decision of the learned trial
Judge that the first respondent was not given

8
 a fair hearing in respect of the primary
election conducted by the appellant on June
9, 2022, when the said first respondent never
made any claim for relief for the nullification
of the said primary election of June 9, 2022 in
which the second respondent was returned as
the winner of the said primary election?
5. Whether their Lordships in the Court of
Appeal have lawful jurisdiction in view of the
totality of the evidence adduced in the first
respondent’s suit including Exhibits 1, 4, 7, 8,
9, 10, 11, 12, 13, 14, 18, 19, 20A, 20B, 20C
and 21 tendered by the first respondent to
hold that the first respondent was entitled to
the reliefs he claimed in his originating
Summons?
6. Whether in the peculiar circumstances of the
primary election of the appellant held on June
9, 2022, the third respondent’s deliberate
failure to monitor the primary election of the
appellant held on June 9, 2022, could in law
invalidate the result of the said primary
election held on June 9, 2022?

9
 The first respondent, on his part, filed his brief of

argument on January 27, 2022. Therein he raised two

issues for determination, as follows:

1. Whether the lower court was correct when it

held that the trial court was right when it
determined this case on the first respondent’s
Originating Summons?
2. Whether in the circumstances of this case, the
lower court was right when it held that the
only valid primary election for Yobe North
Senatorial District conducted by the National
Working Committee of the appellant was the
one held on May 28, 2022, that produced the
first respondent as the candidate for the Yobe
North Senatorial District?

As required by law, each of the parties, through

her counsel, adopted the relevant written arguments,
at the hearing of this appeal on February 1, 2023.
In dealing with this appeal, I find, with all sense
of responsibility as the law permits me, that a
consideration of issue No. 1, raised by the appellant
herein, would suffice for the determination of this
appeal.
10
 ARGUMENTS OF COUNSEL

It is the position of learned senior counsel that

the ageless principle of our jurisprudence in respect
of the utilization of the Originating Summons for the
invocation of the jurisdiction of the Courts for the
ventilation of grievances of an aggrieved has been
firmly established to the effect that where the facts
are in substantial dispute between the parties
especially where there are allegations of crime as in
this case where the appellant denied making Exhibits
8 and 9 attached to the affidavit in support of the
Originating Summons, which were the documents
relied upon by the first respondent as the fulcrum of
his case.

He further submitted that the lower court failed

to take into consideration the application of this legal
principle to the facts of the case before it.

11
 He further contended that the facts in the first
respondent’s Originating Summons are not merely
hostile but irreconcilably hostile to the extent that
even the documents tendered by the first
respondents as exhibits in support of the reliefs he
claimed raised more questions than answers and
created self-doubts as to whether he is even the
person that was returned as the winner of the alleged
primary election said to have been conducted on May
28, 2022.

According to learned senior counsel, the lower

court was wrong in upholding the decision of the trial
court that the Originating Summons procedure
employed to invoke the jurisdiction of the Court was
proper for the following reasons. First, matters
relating to fraud were raised by both the first
respondent and the appellant which took away the
determination of the first respondent’s suit out of the
12
Originating Summons procedure. Second, Exhibit 8
and 9 said to be the alleged results of the primary
election that the first respondent claimed to have won
on May 28, 2022, were strenuously denied by the
appellant as its deeds or documents, which made the
suit to be one of hostility on a critical point. Third,
Exhibit 8 stated that the alleged primary election held
on May 28, 2022, was in respect of a non-existent
and unknown Senatorial District called “Zone C” and
there was no mention of the Senatorial District called
Yobe North Senatorial District which candidacy the
first respondent by his Originating Summons was
claiming. He added that oral evidence need to be
given as it is jurally impracticable to use the result of
the primary election in respect of Zone C to claim
candidacy for another Senatorial District called Yobe
North Senatorial District.

13
 Fourth, Exhibit 7 and 9 did not show any date on
which the said result was made and an undated
document is a worthless piece of paper that has no
evidential value in law.

He further posited that Exhibit 7, 8 and 9 did not

emanate from the appellant as there was no stamp
or seal of the appellant on any of the documents. In
support of this submission, he cited the case of A. P.
C v. Elebeke [2022] 10 NWLR (pt. 1837) 1, 45, paras
C- D.

He further posited that Exhibit 20C which is the

purported third respondent (INEC) report showed,
eminently contradicted the first respondent’s case to
the effect that there was no legitimate primary
election as the primary election was not conducted by
the National Working Committee of the appellant, but
by a planning committee and that same was

14
conducted for in respect of a pseudo constituency
known as “ZONE C’ Federal Constituency, which is a
non-existent constituency. Same was found in
Exhibits 12, 20A and 20B.

According to learned senior counsel, there were

conflict in names. He pointed out that Exhibit 20C
mentioned Alhaji Bashir Sheriff, a name different from
the first respondent Bashir Sheriff. Also, Exhibit 10 is
a letter from one Bashir Sherrif Machina which is a
different name from the first respondent, whose
name on the record before the Court is Bashir Sheriff.
The name Machina is not included in the record of the
Court and the surname before the Court is Sheriff not
Sherrif. Similar contentions were made with regards
to Exhibits 13 and 14.

He further submitted that the legal effect of these

contradictions was that they did not support the

15
affidavit evidence of the first respondent that made
claims to a primary election conducted for Yobe
Senatorial District.

Finally, he canvassed that Exhibit 18 attached to

the further affidavit in support of the Originating
Summons is an unsigned document and of a doubtful
origin irrespective of the name of the National
Chairman and National Secretary of the appellant
without their respective signatures and has no
probative value, A. P. G. A v. Al-Makura [2016] 5
NWLR (pt. 1505) 316, 348.

More on the allegations of fraud, learned senior

counsel submitted that a very close examination of all
the paragraphs of the affidavit and further affidavit
evidence of the first respondent undoubtedly showed
that the first respondent made allegation of
fraudulent practices against the appellant.

16
 He further argued that the cumulative effect of
these pieces of evidence is that the first respondent
was directly accusing the appellant as being
fraudulent in forwarding or seeking to forward the
second respondent’s name to the third respondent as
the candidate for the Yobe North Senatorial District
General Elections, 2023, when the second respondent
allegedly never contested for any primary election for
a senatorial seat to be entitled to be nominated as a
candidate for the said Senatorial District General
Election, with the underlying aim of depriving him of
his entitlement.

He further posited that the appellant too accused

the first respondent of relying on Exhibits 8 and 9 as
the result of the primary election that he claimed he
won, when such documents did not emanate from the
appellant.

17
 On the definition of fraud, learned senior counsel
cited the Ntuks v. N. P. A [2007] 13 NWLR (pt. 1051)
392, 427 -428, paras H-B. reference was also made
to Section 17 of the Penal Code Act.

He urged this court to resolve this issue in favour

of the appellant and allow this appeal.

FIRST RESPONDENT’S SUBMISSIONS

While referring to paragraphs 6, 7, 8, 9, 10, 11

and 12 of the appellant’s counter-affidavit, learned
senior counsel submitted that the appellant set out its
case in the above mentioned paragraphs to the effect
that the appellant conducted a primary election to
nominate its candidate to contest for the office of
Senate for the National Assembly to represent the
Yobe North Senatorial District on May 28, 2022, as
against May 27, 2022 stipulated in Exhibit APC1.
Furthermore, that the primary election, having been
18
conducted on May 28, 2022 as against the stipulated
date scheduled by the national body of the appellant
and contrary to the date given in Exhibit APC1, the
appellant was compelled to review the exercise and
resolved to reschedule and in fact conducted the
primary election on June 9, 2022.

He further pointed out that the appellant did not

controvert the disposition of Alhaji Danjuma Isa
Munga, a member of the Yobe State Senatorial
Primary Election Committee appointed by the
National Working Committee of the appellant, who
deposed to an affidavit wherein he stated that he was
a member of the five-man Election Committee
appointed to conduct the primary election for Yobe
North Senatorial District at the end of which the first
respondent emerged winner with 289 votes. This
affidavit, having not been controverted, also put an
end to the allegation of the primary election being
19
conducted by the Yobe State Chapter of the
appellant.

He further submitted that the appellant did not

deny that it conducted its primary elections for Yobe
East and Yobe South Senatorial Districts in May 28,
2022. The appellant did not also deny that Yobe East
Senatorial District result was a result of the election
conducted by it.

He further submitted that the further affidavit in

response to the counter affidavit of the appellant
wherein Exhibits 20 A and 20 B were attached were
not controverted by the appellant. He added that the
appellant is deemed to have admitted facts deposed
to in the said Further Affidavit, Mabamije v. Otto
(2016) LPELR-26058 (SC).

He further posited that the second respondent

was an aspirant to the Presidential Primary Election

20
of the appellant which concluded on June 8, 2022,
and that the second respondent withdrew from the
Yobe North Senatorial District Primary election of the
appellant in order to contest in the Presidential
Primary election of the appellant. This fact, was
deposed by the first respondent in Paragraph 12 of
the affidavit in support of the Originating Summons,
adding that same has not been denied or
controverted by the appellant, Lawson-Jack v. SPDC
(Nig.) Ltd (2002) LPELR- 1767 (SC).

He further submitted that the appellant filed two

Notices of Preliminary Objection at the trial Court. No
grounds challenging the mode of commencement of
the suit was contained therein, and as such, the
appellant by law, is deemed to have waived any
complained on the mode of commencement of the
action.

21
 He further submitted that the argument of the
appellant that there exists several allegations of fraud
in this matter is a figment of the imagination of the
appellant. He added that by the argument of the
appellant, all allegations of wrong doing will qualify
as an allegation of fraud.

He further posited that issue had not been joined

on whether Yobe North Senatorial Zone was the
Senatorial District in respect of which Exhibit 8 was
issued at the trial court, and the appellant cannot
canvass a case different from its case at the trial court
at this stage.

He further posited that the argument of that

appellant that the first respondent added the name
“Machina” to his name, Bashir Sherrif in Exhibits 10,
13 and 14 is of no help to the appellant because the

22
name of the first respondent is not in issue in this
case.

He further posited that the proper avenue for

denial of Exhibits is in the counter-affidavit of the
appellant and not in the appellant’s brief before this
court as the said brief cannot take the place of
evidence.

He further submitted that the argument of the

appellant concerning Exhibit 20C is unsustainable in
the face of Paragraph 19 of the Appellant’s Guidelines
for the Nomination of Candidates for the 2023
General Elections (Exhibit 3), which permits the
Primary Election Committee to appoint party
members to assist the Committee in its duty. Alhaji
Danjuma Isa Munga at Paras. 6, 7 and 8 of his
affidavit stated that the Primary Election Committee
assigned him to conduct the primary election for Yobe

23
North District and he carried out this duty in the
presence of the third respondent and security agents.

He further submitted that the exhibits now being

attacked by the appellant were not controverted by
the appellant at the trial Court, Iyeke v. Petroleum
Training Institute [2019] 2 NWLR (pt. 1656) 217 at
239, paras G-H; Ezechukwu v. Onwuka [2016] 5
NWLR (pt. 1506) 529; South Eastern States
Newspaper Corporation and Ors v. Anwara (1975) 9-
11 SC 55.

He further submitted that the attempt by the

appellant to expand the scope of its case to bring in
facts upon which issues were not joined cannot be a
yardstick to determine the correctness or otherwise
of the lower courts in the hearing and determination
of this case on the Originating Summons of the first
respondent.

24
 He urged this court to resolve this issue in favour
of the respondent and dismiss this appeal.

REPLY BRIEF

Learned senior counsel filed a reply brief on

January 31, 2023, wherein he submitted in response
to the allegation that Alhaji Danjuma Isa Munga
conducted the primary election as an appointed
person of the National Working Committee and he
signed Exhibit 8, that Exhibit 20C clearly stated it is a
planning committee that Isa Munga was the
Chairman that conducted the primary election on May
28, 2022 and issued the result, Exhibit 8.

He further argued that there is no evidence that

Alhaji Danjuma Isa Munga was appointed by the
National Working Committee as a Chairman of any
primary election of the appellant for Yobe State.

25
 Relying on State v. Onaguruwa (1992) 2 SCNJ 1,
20, learned counsel contended that the issue of
jurisdiction need not be joined by parties at the trial
court as it is neither too early nor late for a party to
litigation to raise the issue of lack of jurisdiction in the
Court.

He further submitted that in the entire length and

breadth of the claims of the first respondent, there
was nowhere the reliefs sought are connected to
Yobe East and Yobe South Senatorial District. The
lower court, in placing reliance on such issues it was
not invited to resolve, occasioned a miscarriage of
justice.

26
 RESOLUTION OF SOLE ISSUE

At the outset, I wish to borrow a leaf from the

Halsbury's Laws of England, Vol 10, whereby jurisdiction
was defined in paragraph 314 as;

The authority which a Court has to decide matters that

are litigated before it or to take cognizance of matters
prescribed in a formal way for its decisions. The limits of
this authority are imposed by statute...under which the
court is constituted, and may be extended or restrained
by similar means. A limitation may be either as to the
kind and nature of the claim, or as to the area which
jurisdiction extended, or it may partake of both these
characteristics.

From the above quoted excerpts, principally, in

adjudication, therefore, jurisdiction is a creature of
law and not the discretion, dislikes or likes of the
parties. One of the indicia of jurisdiction is that the
action or suit is initiated by due process of law.

The Federal High Court (Civil Procedure) Rules,

2019, particularly, Order 3 Rules 6, 7, and 8, thereof

27
provides for the nature and applicability of the
Originating Summons, as one of the modes or way by
which an action or suit can be commenced to
vindicate a plaintiff/claimant’s rights and obligations
under an enactment, documents, deeds or instrument
on question of construction thereof and for a
declaration or relief as to the right claimed.

Long before now, the English Common Law,

which Nigeria received, developed a genre of actions
suitable for the Originating Summons procedure. This
procedure came into the English legal system through
the Chancery Procedure Act, 1852. It, however, only
emerged as a feature of the rules of the English
Courts in 1883, with the amendment of the 1875
Rules of the Supreme Court of England, NBN v. Alakija
(1978) 2 LRN 78, 86 - 87.

28
 In 1885, Cotton L.J. in Re Powers, Lindsell v.
Phillips (1885) 30 Ch. D 291 stated that:
As regards the view taken by the Vice-Chancellor, it is
true that it is not a right course to take out an originating
summons to obtain payment of a disputed debt, where
the dispute turns on matters of fact.

[Emphasis mine]

Lindley L.J. in the same case expressed very

similar views. He said:

I think the Vice-Chancellor can hardly have understood

that in this case there are no facts in dispute. A
summons is not the proper way of trying a disputed debt
where the dispute turns on questions of fact, but where
there is no dispute of fact, the validity of the debt can be
decided just as well on summons as in action.

[Emphasis mine]

In another landmark pronouncement of Cotton,

L.J. in Re Giles and Personal Advance Co. v. Michell
(1890) 43 Ch. D 391, the Law Lord explained the

29
purpose of the procedure of Originating summons as
follows:

...to enable simple matters to be settled by the

court without the expenses of bringing an action
in the usual way, not to enable the court to
determine matters which involve a serious
question.

[Emphasis mine]

The judgment of Lindley L.J in Re Holloway (A

Solicitor), ex parte Pallister (1894) 2 QB 163, 167- 68
furnishes valuable insights into its historical evolution.
Lindley L.J. explained that the “Originating Summons”
was conceived as a method of commencing certain
chancery proceedings in chambers, as opposed to the
conventional method of lodging an equitable bill.

The same principle has also been emphasized by

this court in a long list of decided cases of this Court,

30
Re Doherty, Doherty v. Doherty (1967) 1 ANLR
(reprint) 260, 265, where Ademola, CJN, frowned at
the invocation of the Originating Summons procedure
in “hostile proceedings,” National Bank of Nigeria v.
Alakija (supra); Inakoju v. Adeleke (2007) 1 CCLR
240, 31; Eze v. UNIJOS (2017) LPELR - 42345 (SC).

Likewise, in the case of Sani v. Kogi State House

of Assembly [2019] 4 NWLR (pt. 1661) 172, 183-184,
paras H-D, this Court highlighted the domain of the
Originating Summons procedure, thus:

What type of action/case is the Originating Summons

procedure best suited for? I will commence by throwing
more light on an Originating Summons Process. In the
case of Hussaini Isa Zakirai v. Salisu Dan Azumi
Muhammad and ors (2017) LPELR - 42349 (SC), (2017)
17 NWLR (pt. 1594) 181, this court had this to say:
In effect, Originating Summons is a procedure
wherein the evidence is mainly by way documents
and there is no serious dispute as to their existence
in the pleadings. It is usually heard on affidavit
evidence and involve questions of law rather than
issues of fact.

31
 By the above proposition, Originating Summons is
best suited for cases where there are no substantial
disputes of facts or likelihood of facts.
In the case of Standard Cleaning Services Company
v. The Council of Obafemi Awolowo University, Ile-Ife
(2011) 14 NWLR (pt. 1269) 193 at 204 - 205, 213, the
court held that:
Originating Summons should only be applicable in
circumstances where there is no dispute on the
question of facts or even the likelihood of such
dispute. Application for initiating contentious issues
of facts where the facts of the plaintiff leave matter
for conjecture, Originating Summons is not
appropriate procedure. Where it is obvious from the
state of the affidavit that there would be an air of
friction in the proceedings, then an Originating
Summons is not appropriate. Originating summons
should be used only where the proceeding involves
question of law, rather than disputed facts, even
where the facts are not in dispute, the Originating
Summons should not be used, if the proceedings
are hostile.

[Emphasis mine]

The above case was also cited with approval in

the more recent decision of this Court, in Mr. Uba v.

32
Chief (Dr.) George Moghalu and Ors [2022] 15 NWLR
(pt. 1853) 271, 307-308, paras. D - C thus:

Where documents avail and abound, it is more

convenient, expeditious, cheaper and better to rely on
them by the court than to resort to pleadings. The
instant case is one out of many that this court has given
judicial approval and commendation for the use of
Originating Summons to prosecute cases founded on
primary elections since documents speak and assist
more than words.
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. It
is usually heard on affidavit evidence and involves
questions of law rather than issues of fact.
See: Hussaini Isa Zakirai v. Salisu Dan Azumi Muhammad
and Ors. (2017) LPELR- 42349(SC), (2017) 17 NWLR (pt.
1594) 181, Sani v. Kogi State House of Assembly and
Ors. (2019) LPELR-46404 (SC) 13 -16 paras. D; [2019]
11 NWLR (pt. 1661) 172; Dapianlong and Ors. v. Dariye
and Anor (2007) LPELR-928 (SC) 46 paras. A; [2007] 8
NWLR (pt. 1036) 239.

Now, it is almost inconceivable that parties would

go to court to litigate over issues in which there are
no disputes at all between them, perhaps just of the

33
fun of it. Thus, every suit must involve a dispute or
a disagreement; for if it were not so, then what would
be the basis of the litigation? What is prohibited
however, in Originating Summons procedure, is
substantial dispute of facts.

As demonstrated above, Originating Summons is,

particularly, employed in commencing a suit when
what is in dispute is the mere construction of
documents or interpretation of law in respect of which
pleadings are unnecessary or where there is no real
dispute as to facts between the parties, G. F.
Harwood, Odger’s Principles of Pleadings and Practice
in Civil Actions (Twentieth Ed) (New Delhi – India:
Universal Law Publishing Co. Pvt. Ltd, 2010) 352; F.
Nwadialo, Civil Procedure in Nigeria (Lagos:
University of Lagos Press, 2000) 211; Arjay Ltd and
Ors v A. M. S. Ltd (2003) LPELR -555 (SC).

34
 Others include Inakoju and Ors v Adeleke and Ors
(2007) LPELR -1510 (SC); Pam and Anor v
Mohammed and Anor (2008) LPELR -2895 (SC);
National Bank of Nigeria Ltd and Anor v. Alakija and
Anor (1978) LPELR -1949 (SC); Ezeigwe v. Nwawulu
and Ors (2010) LPELR – 1201 (SC); Famfa Oil Ltd v.
AG, Fed and Anor (2003) LPELR -1239 (SC).

The situation is different in a suit commenced by

Writ of Summons where the facts are regarded as
holding a pride of place and the fountain head of the
law in the sense that the facts lead to a legal decision
on the matter. That is not the position in proceedings
commenced by Originating Summons, where facts do
not play a central role but an infinitesimal role. On the
distinction between Originating Summons and Writ of
Summons, see the following cases: Dapianlong v.
Dariye (supra); Keyamo v. House of Assembly, Lagos
State [2002] 18 NWLR (pt. 799) 605; Director, SSS v.
35
Agbakoba [1999] 3 NWLR (pt. 595) 314; Famfa Oil
Ltd v. Attorney-General, Federation and Anor [2003]
18 NWLR (pt. 852) 453; Inakoju v. Adeleke (supra);
and Attorney-General, Adamawa State and Ors v.
Attorney-General, Federation and Ors (2005) LPELR-
602 (SC).

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 are not
glossed over. It is thus improper to commence civil
proceeding by Originating Summons where the facts
are likely to be in substantial dispute and thus
proceedings for which it is used usually involves
questions of law rather than disputed issue of facts.

A survey of the earliest English cases, and the

leading Nigerian Supreme Court decisions, would

36
reveal the judicial attitude to the invocation of the
Originating Summons procedure. In both
jurisdictions, courts disclaim the propriety of resolving
matters “of a contentious nature” by Originating
Summons, Re Sir Lindsay Parkinson and Co Ltd
Settlement Trusts [1965] 1 All ER 609; Re Powers,
Lindsell v. Phillips (1885) 30 Ch D 291; Re Giles, Real
and Personal Advance Co v Michell (1890) 43 Ch D
391; Re Doherty, Doherty v Doherty [1967] 1 A. N. L.
R. [reprint] 260, 265, [where Ademola CJN frowned
at the invocation of the Originating Summons
procedure in “hostile proceedings”]; NBN v Alakija
(1978) 2 LRN 78, 86-87; Famfa Oil Ltd v A-G
Federation (supra).

In Inakoju v Adeleke (2007) 1 CCLR 240, 311,

Tobi JSC summed up the attitude of the apex court to
this question thus:

37
 Commencement of action by Originating
Summons is a procedure which is used where the
facts are not in dispute or there is no likelihood of
their being in dispute… Originating summons
is…not [for] matters of such controversy that the
justice of the case could demand the settling of
pleadings.
What then are the facts in this case? The facts
are not to be found in submissions of counsel but in
the affidavit evidence before the Court.

I am aware that it is not every seeming conflict

arising from affidavit evidence that would warrant the
calling of or resort to oral evidence for its resolution.
However, where the issues of facts are contentious
and border of the copious allegations of fraudulent
practices as in the first respondent's suit, it calls for
caution on the path of the court from rushing to
determine such a claim on affidavit evidence alone in
an Originating Summons, as such a case is, in my
view, one more suited and proper for determination

38
on the pleadings and evidence of the parties under
the procedure by way of a Writ of Summons.

In the instant case, the bedrock of suit before the

trial court, from a perusal of the affidavit and further
affidavit of the first respondent, along with exhibits
attached thereto, shows that there were allegations
of fraudulent practices by both parties.

It is here necessary to reproduce some material

portion of the affidavit in support of the Originating
Summons filed at the trial Court.

15. I state that there was only one primary election of

the first defendant held for Yobe North Senatorial
District and I know that the second defendant who
was not an aspirant at the first defendant’s primary
election for Yobe North Senatorial District Did not
score the highest number of votes at the primary
election of the first defendant held for Yobe North
Senatorial District.
16. I state that by a letter dated 13th June, 2022, I
wrote clarifying to the first defendant that I
remained committed to my mandate which I won
at the primary election of the first defendant and
never signed any document to vacate my said

39
 mandate. Copy of the letter duly collected by the
Deputy National Organizing Secretary of the first
defendant is hereby attached as Exhibit 13.
17. I similarly wrote to the Chairman of third defendant
on 15th June, 2022, clarifying that I remained the
candidate of the first defendant and never signed
to relinquish my mandate. Copy of the letter duly
received by the third defendant is attached as
Exhibit 14.
18. I made inquiries in the office of the third defendant
regarding the names of candidates submitted by
the first defendant on June 17, 2022, for the 2023
General Elections and discovered that the name of
the second defendant was sent by the first
defendant to the third defendant in contravention
of the Electoral Act, 2022, the Constitution of the
All Progressives Congress and the Guidelines doe
the Nomination of Candidates for the 2023 General
Elections issued by the first defendant.
19. I state that, having won the primary election of the
first defendant, as candidate for Yobe North
Senatorial District, the first defendant is under a
duty to submit my name as its candidate for Yobe
North Senatorial District to the third defendant.
20. That on 21st day of June, 2022, the National
Chairman of the first defendant in person of Dr.
Abdulahi Adamu while answering questions from
State House correspondents said that Ahmed
Lawan participated in the party primary election for
Yobe North Senatorial District.
21. …
22. …
23. …

40
 24. ….
25. …
26. …
27. …
28. …
29. I state that I did not withdraw my candidature for
Yobe North Senatorial District for the 2023 General
Elections.
I have carefully read the affidavit, further
affidavits endorsed in the Originating Summons and
counter affidavits and I am of the view that the first
respondent made allegations of fraudulent practices
against the appellant as well as other irreconcilable
conflicts.

Order 3 Rule 2 (b) of the Federal High Court (Civil

Procedure) Rules, 2019, provides that where a suit is
based on or alleges an allegation of fraud, it must not
be commenced by Originating Summons.

Surely, any attempt “to prove the liability of the

defendant” through the Originating Summons
procedure, where the Affidavit (s) and Counter
41
Affidavits evince the subsistence of substantial
disputes, must be resisted, Inakoju v Adeleke
(supra); Re Sir Lindsay Parkinson & Co Ltd Settlement
Trusts (supra); Re Powers, Lindsell v Phillips (supra);
Re Giles, Real and Personal Advance Co v Michell
(supra); Re Doherty, Doherty v Doherty (supra).

It cannot be otherwise for substantial disputes

could only be resolved in the usual adversarial
proceedings upon the settlement and exchange of
pleadings: averments in pleadings borne out by oral
evidence -oral evidence tested in cross examination,
Cameroon Airlines v Otutuizu (2011) LPELR -827 (SC)
36; Insurance Brokers v. Atlantic Textile [1996] 9 10
SCNJ 171, 183; Housing Corporation v. Enekwe [1996]
1 SCNJ 98, 133; Odutola v. Papersack Nig Ltd [2006]
18 NWLR (pt. 1012) 470; Aake and Anor v. Akun
[2003] 14 NWLR (pt. 840) 311; (2003) LPELR -72 (SC)
9, paragraph G; Ajuwon v. Akanni and Ors [1993] 9
42
NWLR (pt. 316) 182, 200; Magnusson v. Koiki and Ors
[1993] 9 NWLR (pt. 317) 28.

More fundamentally, there is considerable force

in the submission that the trial court, wrongly,
purported to determine the suit – a suit in which the
claimant/first respondent hauled criminal allegations
against the appellant as defendant – through the
Originating Summons procedure, Nwobodo v. Onoh
[1983] LPELR -8049 (SC) 6-7, F-A; Emmanuel v
Umana and Ors (2016) LPELR -40037 (SC) 17 – 18.

Indubitably, that approach was a sacrilegious

affront to a basic requirement that a person, who is
so confronted, should be able to confront his accuser.
This is, usually, done through cross-examination or by
the confrontation or contradiction of all the witnesses
that testify against him; Nwanegbo v. Oluwole (2001)

43
37 WRN 10l; Dawodu v . N. P. C. (2000) 6 WRN 116;
Durwode v. The State (2001) 7 WRN 50.

The first respondent submitted that the argument

of the appellant that there exists several allegations
of fraud in this matter is a figment of the imagination
of the appellant. In other words, that fraud was not
central to its case. I find this submission a little bit
misconceived.

This is because in law, an allegation of fraud

requires that the particulars of fraud be set out to
confer any modicum of seriousness on such an
allegation of fraud to warrant further enquiry into it
at trial.

In other words, unless and until an allegation of

fraud is, expressly, made and supported by its
particulars, it is a non-starter as it is well settled that
a mere or bare or banal allegation of fraud, no matter

44
how grave, is of no moment if it is not supported by
the relevant particulars as required by law, Nammagi
v. Akote [2021] 3 NWLR (pt. 1762) 170.

An allegation of fraud that is merely generic,

vague and lacking in the specific and particulars is in
law a non-starter and useless, PDP v. INEC and Ors
(2012) LPELR 9724 (SC) Nishizawa Ltd v. Jethwani
(1984) 12 SC 234; UBA and Anor v. Alhaji Babangida
Jargaba [2007] 11 NWLR (pt. 1045) 247.

What then is fraud or what in law can amount to

fraud? In law, fraud has simply been defined as an
advantage gained by unfair means; a false
representation of fact made knowingly, or without
belief in its truth, or recklessly, not caring whether it
is true or false. Fraud also means an intentional
perversion of truth for the purpose of inducing

45
another in reliance upon it to part with some valuable
thing belonging to him or to surrender a legal right.

It is also a false representation of a matter of fact

whether by words or by concealment of that which
should have been disclosed, which deceives another
so he shall act upon it to his legal injury, Jowitt's
Dictionary of English Law, Vol. 1, 2nd Edition, p. 827;
Black’s Law Dictionary, 8th Edition, p. 660.

My Lords, the law, both in England and in Nigeria,

has always been that where fraud is alleged in civil or
criminal proceedings, it is analogous to imputation of
a crime which has to be proved beyond reasonable
doubt, Section 135 (1) (2) and (3) of the Evidence
Act, 2011, Flower v. LLoyd (1878) 10 Ch. D. 327;
Jonesco. v. Beard (1930) All E.R Rep. 483; this court
of Nigeria has also held the same views in a plethora
of authorities: Olufunmise v Falana [1990] 4 SCNJ

46
142, 157; Folami v Cole [1990] 4 SCNJ 18; Nwobodo
v. Onoh (supra); Talabi v Adeseye [1972] 8 - 9 SC 20,
40. This is, equally, the position in East
Africa, Kulsumbhai Gulamhussein Jaffer Ramji and
Anor v Abdul Jaffer Mohmmed Rahim and Ors [1957]
E.A 699.

In the instant case, particulars were not even set

out on the allegations of fraud as required by law,
between the parties on the strength of the affidavit
evidence placed before the lower court by the first
respondent. The Originating Summons procedure
was, irredeemably, improper to commence a suit
founded steeply on allegation of diverse acts of fraud,
misrepresentation and forgery.

Such allegations are criminal in nature and central

to the claims of the first respondent. They must be
proved beyond reasonable doubt even in a civil

47
proceedings and thus suitable for proceedings
commenced by way of Writ of Summons, Section 135
(1) of the Evidence Act 2011; UAC Ltd. v. Taylor
(1936) 2 WACA 70; Usenfowokan v. Idowu (1969)
NMLR 77; Nwobodo v. Onoh and Ors. (1984) NSCC 1.

With the allegations of fraud, coupled with other

irreconcilable conflicts in the numerous affidavits,
counter-affidavits and further affidavits filed by the
parties, it becomes crystal clear that there is palpable
dispute on the facts which make the proceedings
hostile and unsuitable for adjudication under the
Originating Summons procedure. As this court held in
Ekanem and Ors v. The Regtd Trustees of the Church
of Christ, the Good Shepherd and Ors (SC/349/2011
delivered on 02/12/2022):
With the allegation in fraud in the affidavit evidence before
the trial court, there was the need to call oral evidence in
order to prove same in accordance with the standard
required and prescribed by law: beyond reasonable doubt.
That standard cannot be met on affidavit evidence alone,
48
 which cannot be tested under cross examination for its
credibility…

It is thus clear to me that the judgment of the

trial court and the lower court on the first
respondent’s Originating Summons, which they
reached on disputed depositions in affidavits, were
perverse and occasioned miscarriage of miscarriage
of justice and so liable to be set aside. This must be
so for where the procedure adopted to ventilate
grievances is wrong, the processes ought to be struck
out, Odiase and Anor. v. Agho and Ors. [1972] 1 All
NLR (pt. 1) 170, 177.

Facts are the spring board of law. It is the facts

of the case that determine the appropriate procedure.
The first respondent’s case is lost because of the
unpardonable procedure resorted to by learned
senior counsel for the first respondent. An action by

49
way of Originating Summons may sound romantic
and possibly prosaic, but it could lead to a loss of a
case because of a parade of abysmal ignorance as to
what to do.

Accordingly, this appeal is allowed and the

judgment of the Court of Appeal, Gombe Judicial
Division, sitting in Abuja, delivered on November 28,
2022, which affirmed the judgment of the Federal
High Court, Damaturu Judicial Division, delivered on
September 28, 2022 and all the orders made therein,
are hereby set aside. The first respondent’s suit is,
hereby, struck out.

Chima Centus Nweze

Justice, Supreme Court
50
COUNSEL:

51