DR YUSUF NAGOGO V. CONGRESS FOR PROGRESSIVE CHANGE (C.P.C.) & ORS.

CORAM

ALI ABUKAKAR BABANDI GUMEL JUSTICE, COURT OF APPEAL.

MOHAMMED LADAN TSAMIYA    JUSTICE, COURT OF APPEAL.

ALI ABUBAKAR BABANDI GUMEL    JUSTICE, COURT OF APPEAL.

ALI ABUKAKAR BABANDI GUMEL JUSTICE, COURT OF APPEAL.

PARTIES

DR YUSUF NAGOGO   APPELLANTS

CONGRESS FOR PROGRESSIVE CHANGE (C.P.C.) & ORS.

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The 1st and 2nd Respondents had earlier instituted this action at the Federal High Court Nasarawa State, sitting at Lafia, against the 3rd Respondent and the Appellant.The initial action challenged the actions of the 3rd Respondent (INEC) as they related to the candidature of the 2nd Respondent who was the duly nominated and sponsored candidate of the 1st Respondent for the Nasarawa North senatorial Election for the April, 2011 elections.

The 1st and 2nd Respondents by way of an Originating Summons sought a declaration that nomination, sponsorship and substitution of candidates for an election, is the exclusive preserve of the political party concerned under the law, that the 1st Defendant/Appellant has no vires or statutory power to reject the name of any candidate sponsored by a political party for elective position or compel any political party to sponsor a particular candidate for an election, an order of this Honourable court that the sponsorship/nomination of the 2nd Plaintiff by the 1st having been done in accordance with the law cannot be invalidated in law among other reliefs. The Appellant filed a counter affidavit in opposition; the trial Court reviewed the issue critically and gave judgment in favour of the 1st and 2nd Respondents. Dissatisfied with the judgment, the Appellant appealed to the Court of Appeal.

HELD

Appeal Dismissed

ISSUES

1.The propriety of originating summons as the mode of commencement of this suit, i.e. suit No: FHC/LF/CS/17/2011, at the trial court. Can an action be commenced in the Federal High court by way of originating summons?

2 Whether the trial court had jurisdiction to entertain the originating summons in view of the hostile and conflicting position of the parties?

RATIONES DECIDENDI

PROCEDURAL ERROR – WHETHER AN APPELLANT CAN BE HEARD TO COMPLAIN ABOUT A WRONG PROCEDURE HE ACQUIESCED TO?

“Upon non-complain of wrong procedure, if at all exists, the appellant should not be heard to complain as he is deemed to have waived the irregularity he alleged”. PER M. L. TSAMIYA J.C.A

JURISDICTION – DISTINCTION BETWEEN JURISDICTION AS A MATTER OF SUBSTANTIVE LAW AND JURISDICTION AS A MATTER OF PROCEDURAL LAW

“That there are two distinct issues of jurisdiction, namely jurisdiction as a matter of substantive law and jurisdiction as a matter of procedural law. Jurisdiction as a matter of substantive law cannot be waived by a litigant while jurisdiction as a matter of procedural law can be waived by a litigant”. PER M. L. TSAMIYA J.C.A

AFFIDAVIT EVIDENCE – WHERE FACTS IN AN AFFFIDAVIT AND COUNTER AFFIDAVIT ARE IN CONFLICT THE COURT RESOLVE SAME BY ORAL EVIDENCE

“The law is trite that where the facts in an affidavit and counter-affidavit are in conflict substantially, it becomes imperative that in such a situation oral evidence shall be required and given to resolve the conflict. See C.U. Mbaji& Sons Ltd. V. A.I. Ahunanya (2000) 8 NWLR (Pt. 669) 498.”PER M. L. TSAMIYA J.C.A

IRREGULARITY – WHETHER A PARTY CAN TAKE ADVANTAGE OF AN IRREGULARITY HE ACQUIESCED TO?

“It is true that a party cannot take advantage of the irregularity which he has acquiesced to in Adebayo &Ors. V. Shonowo &Ors. (1969) 1 NWLR 176, an irregular procedure was followed in commencing an action”. PER M. L. TSAMIYA J.C.A

AFFIDAVIT EVIDENCE – NATURE OF CONFLICT IN AN AFFIDAVIT THAT WILL RECEIVE THE ATTENTION OF THE COURTS

“In deciding whether or not contents of the affidavit in support are in dispute/conflict with that of the counter-affidavit, Tobi, J.S.C. (as he then was) stated in L.S.P.D.C. V. Adoled Stamm International (Nig) Ltd. (2005) 2 NWLR (Pt. 910) 63 @ 503:-
“For conflict in affidavit to receive the attention of the court, the conflict must really affect the live issues involved in the case. The conflict must be tangible not intangible; it must be substantial and fundamental to the live issues in the case, where conflicts are peripheral, cosmative, in articulate or mere force orchestrated by the party, a court of law will not order that oral evidence be led to resolve or reconcile the conflicts.” PER M. L. TSAMIYA J.C.A

PROCEDURAL ERROR – WHETHER THE ADOPTION OF A WRONG PROCEDURE CAN NULLIFY A PROCEEDING?

“The adoptions of a wrong procedure/ if at all exist would be no more than an irregularity, and would not render the entire proceedings a nullity.”PER M. L. TSAMIYA J.C.A

FILING OF A COUNTER AFFIDAVIT –THE FILING OF A COUNTER AFFIDAVIT DOES NOT MAKE A CLAIM HOSTILE

“It is not the filing of counter affidavit per se that makes the claim hostile. See Etim vs. Obot (2010) 12 NWLR (Pt. 1207) 108 @ 155 p. G – H where this court decided that:-
“It is not the filing of the counter-affidavit to oppose the claim in the originating summons that makes such proceedings to be contentious or to result in substantial disputed facts. The nature of the claim(s) and fact(s) deposed in the affidavit in support of the prayers in originating summons can by themselves disclose disputed facts and hostile nature of the proceedings.”PER M. L. TSAMIYA J.C.A

CASES CITED

STATUTES REFERRED TO

Electoral Act 2010 (as amended)Federal High Court (civil procedure) Rules, 2009

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