Legalpedia Citation: (2025-02) Legalpedia 42584 (CA)

In the Court of Appeal

Holden at Akure

Mon Feb 10, 2025

Suit Number: CA/AK/270/2022

CORAM

Isaiah Olufemi Akeju Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Jane Esienanwan Inyang Justice of the Court of Appeal

PARTIES

1. ALL PROGRESSIVES CONGRESS
2. BARRISTER OGUNSOLA RAFIU ADEGOKE
3. BARRISTER OLUBISI OLADOSU
4. ENGR. OGUNDIPE MAAROOF KAYODE

APPELLANTS

1. PEOPLES DEMOCRATIC PARTY (PDP)
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. OSUN STATE INDEPENDENT ELECTORAL COMMISSION
4. PRINCE ADEGBOYEGA FAMODUN

RESPONDENTS

AREA(S) OF LAW

CONSTITUTIONAL LAW, ELECTORAL LAW, LOCAL GOVERNMENT ELECTION, CIVIL PROCEDURE, AMENDMENT OF ORIGINATING PROCESS, JURISDICTION, CAUSE OF ACTION, DISCRETION, APPEAL, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

This case involves an appeal from the ruling and judgment of the Federal High Court, Osogbo Judicial Division delivered on 15th September, 2020 and 25th November, 2022. The 1st Respondent (Peoples Democratic Party) had filed an originating summons on 27th July, 2022 challenging the 3rd Respondent (Osun State Independent Electoral Commission) on the basis that provisions of the Osun State Electoral Law and Local Government Administration Law of 2015 were inconsistent with the Electoral Act 2022. The 1st Respondent sought declaratory and injunctive reliefs to prevent the 3rd Respondent from conducting Local Government elections in Osun State unless it complied with the provisions of the Electoral Act 2022.

While the suit was pending, on 1st August, 2022, the Osun State Independent Electoral Commission Law 2022 was enacted, repealing the previous electoral laws in the state. The 3rd Respondent subsequently issued a notice of election on 15th August, 2022. The 1st Respondent then filed a motion to amend the originating summons to reflect the change in law, which was granted by the trial court despite opposition from the 3rd Respondent.

The Appellants (All Progressives Congress and others) applied to be joined as interested parties at the trial Court. The Federal High Court granted the reliefs sought by the 1st Respondent/Plaintiff and made a consequential order nullifying the Local Government elections conducted on 15th October, 2022, directing all elected Local Government officials to vacate their offices. Dissatisfied with this decision, the Appellants filed this appeal.

HELD

1. The appeal was allowed.
2. The Court held that the original originating summons filed by the 1st Respondent did not disclose any reasonable cause of action as it was based on a speculative and hypothetical premise regarding future actions of the 3rd Respondent.
3. The Court further held that the lower Court was wrong in granting leave to amend an incompetent originating summons, especially since the law being challenged in the original summons had been repealed, making the action academic.
4. The Court ruled that the lower Court lacked jurisdiction to hear and determine the claim as there was no valid originating process to confer jurisdiction.
5. The amended originating summons was struck out for incompetence and consequently, the entire Suit No: FHC/OS/CS/94/2022 was struck out.
6. Costs of N250,000.00 were awarded to the Appellants against the 1st Respondent.

ISSUES

1. Whether the lower Court was right to have granted the 1st Respondent’s prayer to amend its originating summons dated 27th July, 2022 and a deeming order of same having regard to the legal and factual issues regarding the said application?
2. Whether the lower Court was right to have held that the suit of the 1st Respondent disclosed a reasonable cause of action and did not constitute an abuse of Court process?
3. Whether the lower Court was right to have granted the reliefs sought by the 1st Respondent on the ground of non-compliance with the Electoral Act by the 3rd Respondent?
4. Whether the lower Court was right to have made a consequential order nullifying the Local Government election of 15th October, 2022 and ordering the duly elected officers to vacate their office forthwith despite such reliefs not having been sought by the 1st Respondent?

RATIONES DECIDENDI

AMENDMENT OF COURT PROCESSES – THE PURPOSE OF AMENDMENT

An amendment is nothing but the correction of an error committed in any process, pleading or proceeding at law or in equity, and which is done either as of course or by the consent of parties or upon notice to the Court in which the proceeding is pending. The object of Courts is to decide the rights of the parties and not to punish them for mistakes they may make in the conduct of their cases by deciding otherwise than in accordance with their rights.– Per ABUBAKAR MUAZU LAMIDO, J.C.A.

INCOMPETENT ORIGINATING PROCESS – EFFECT OF AMENDMENT ON AN INCOMPETENT ORIGINATING PROCESS

I have earlier on in the judgment found that the suit disclose no reasonable cause of action and in that respect the originating process is incompetent and liable to be struck out. The law is well settled that an incompetent or void originating summon cannot be amended. This so because the defect in the originating summons cannot be cured by an amendment of whatever type. – Per ABUBAKAR MUAZU LAMIDO, J.C.A.

AMENDMENT OF ORIGINATING PROCESS – WHEN AMENDMENT CHANGING CAUSE OF ACTION IS IMPERMISSIBLE

The law is well settled that an amendment which is intended by a party to change the nature or the case before the Court ought not be granted because it is not and cannot be said to be made bona fide and it is intended to overreach the other party.– Per ABUBAKAR MUAZU LAMIDO, J.C.A.

CAUSE OF ACTION – WHAT CONSTITUTES A CAUSE OF ACTION

…a cause of action is constituted by the bundle or aggregate of facts which the law will recognise as giving the plaintiff a substantive right to make the claim against the relief or remedy being sought. Thus the factual situation on which the plaintiff relies to support his claim must be recognized by the law as giving rise to a substantive right capable of being claimed or enforced against the defendant. In other words, the factual situation relied upon must constitute the essential ingredients of an enforceable right of claim. – Per ABUBAKAR MUAZU LAMIDO, J.C.A.

ELEMENTS OF A CAUSE OF ACTION – THE TWO ELEMENTS WHICH CONSTITUTE A CAUSE OF ACTION

Since a cause of action is an aggregate or combination of facts which when proved will entitled the plaintiff to a remedy against the defendant, the plaintiff must show the existence of the two elements constituting a cause if action, namely: (i) the wrongful act of the defendant which gives the plaintiff his cause of complaint; and (ii) the consequent damages flowing from me act or me defendant. – Per ABUBAKAR MUAZU LAMIDO, J.C.A.

ACADEMIC, SPECULATIVE AND HYPOTHETICAL SUITS – WHEN A SUIT IS CONSIDERED ACADEMIC

A suit is academic where it is merely theoretical, makes empty sound and of no practical value to the plaintiff, even if judgment is given in his favour, A suit is academic if it is not related to practical situation of human nature and humanity. A suit is speculative if it is based on speculation. A suit is speculative if it is not supported by facts or very low on facts but very high on guesses. As Courts of law are not established to adjudicate on guesses but on facts such actions are struck out. – Per ABUBAKAR MUAZU LAMIDO, J.C.A.

JURISDICTION – EFFECT OF LACK OF JURISDICTION

Jurisdiction being the competence of the Court to hear and determine a dispute before it is so radical and crucial aspect of the competence of a Court. Where a Court lacks jurisdiction to hear and determine a matter, the whole proceeding is a nullity however well conducted and brilliantly decided as the effect is not intrinsic but extrinsic to adjudication. – Per ABUBAKAR MUAZU LAMIDO, J.C.A.

NOTICE OF APPEAL – COMPETENCE OF A NOTICE OF APPEAL

To start with, a notice of appeal is an originating process in the appeal process just like a writ of summons in ordinary civil actions. A notice of appeal must be validly filed before an appeal becomes competent and once it is vitiated, the appeal is incompetent and liable to be struck out in limine.– Per ABUBAKAR MUAZU LAMIDO, J.C.A.

GROUNDS OF APPEAL – PURPOSE OF GROUNDS OF APPEAL

The law is well settled that a ground of appeal is the totality of the reasons why the decision complained of is considered wrong in law or fact or mixed law and fact by the party appealing against the Judgment. The purpose of the grounds alleged is to isolate and accentuate for attack the basis of the reasoning of the decision challenged. – Per ABUBAKAR MUAZU LAMIDO, J.C.A.

JOINDER OF INTERLOCUTORY AND FINAL APPEAL – PROPRIETY OF APPEALING AGAINST A RULING AND JUDGMENT IN A SINGLE NOTICE OF APPEAL

It is settled law that a party may include an appeal against an interlocutory decision in an appeal against the final judgment. This approach is commenced as it saves time and allows the appellate Court to resolve all the issues in controversy in the matter in one proceeding. However, where such interlocutory appeal is outside the time specified in Section 24(2) of the Court of Appeal, Act Cap C36 Laws of the Federation of Nigeria (LFN) 2004, the proper procedure must be complied with i.e. leave must be sought and obtained to appeal out of time. – Per ABUBAKAR MUAZU LAMIDO, J.C.A.

CONSISTENCY IN LITIGATION – A PARTY MUST MAINTAIN CONSISTENCY IN ITS POSITION THROUGHOUT LITIGATION

A party should be consistent in stating his case and consistent in proving it. He will not be allowed to take one stance in his pleadings then turn somersault during the trial, then assume nonchalant attitude in the Court of Appeal, only to revert to his case as pleaded in the Supreme Court. Justice is more than a game of hide and seek. – Per ABUBAKAR MUAZU LAMIDO, J.C.A.

APPROBATE AND REPROBATE – PROHIBITION AGAINST TAKING INCONSISTENT POSITIONS IN LITIGATION

In litigation, consistency is important by all the parties. It is vital that a party is not tickle in the position he takes. An appeal is not a different suit from that heard before the trial and/or tower Court. It is arehearing on the record of appeal, a continuation of the proceedings before the lower Court. Hence a party is not allowed to maintain a position before a lower Court and make a U-turn on appeal. – Per ABUBAKAR MUAZU LAMIDO, J.C.A.

EFFECT OF JOINDER OF PARTIES – RIGHTS OF A PARTY JOINED AFTER A RULING

“…the law has been settled that once a party has been joined in a matter, the order for joinder is an amendment of the process by which the matter was begun and relates back to the date of the commencement of the matter and not to the date of the joinder. That is the true position of the law and in the circumstances the fact that by the time the appellants were ordered to be joined as interested parties, the ruling they appealed against has been delivered cannot bar them from attacking the said ruling on appeal. – Per ABUBAKAR MUAZU LAMIDO, J.C.A.

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria, 1999 (as amended)
2. Electoral Act, 2022
3. Court of Appeal Act, Cap C36, Laws of the Federation of Nigeria, 2004
4. Court of Appeal Rules, 2021
5. Federal High Court (Civil Procedure) Rules, 2019
6. Interpretation Act, Laws of the Federation of Nigeria
7. Osun State Electoral Law, 2015
8. Osun State Local Government (Creation and Administration) Law, 2015
9. Osun State Independent Electoral Commission Law, 2022

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