A LEGAL REVIEW/ ANALYSIS OF THE CASE OF APC V. BASHIR SHERIFF & 2 ORS. HELD AT THE SUPREME COURT OF NIGERIA.
Written By; Kater David Aorga (Bingham University) and Greatness Eyonsa (University of Calabar).
The first respondent Bashir Sheriff who was the Plaintiff at the original trial court, brought an action by means of Originating Summons against the appellant, and the second defendants concerning the Senatorial primary elections for Yobe North Senatorial District. He purportedly won the election conducted on May 28, 2022, but later, a second election was held on June 9, 2022 where the second respondent was declared winner. The first respondent hence, summarily sought relief by means of Court declarations and orders naming him as the rightful candidate of the now stated appellant (who was a defendant at the trial court) and invalidating the primary election held on June 9, 2022.
The trial court ruled in favour of the first respondent and the Court of Appeal affirmed the decision of the trial court, and then the aggrieved appellant brought the matter before the Supreme Court.
ISSUES RAISED BY APPELLANT’S BRIEF
In their brief of argument, the appellant raised six issues for determination. Summarily they are;
i.) Whether in the allegation of fraud found within the affidavits, and further affidavits filed by the parties, the lower court (the Court of Appeal and will hereinafter be referred to as “the lower court or “court below”) was right to have affirmed the adjudication of the trial court on the Originating Summons of the first respondent?
ii.) Whether the court below had the jurisdiction to affirm the decision of the trial court in declaring the first respondent as the winner of the primary elections conducted on May 28, 2022, as the election was held for non-existent constituency known as “Zone C” and the purported winner was one Alhaji Bashir Sherriff, a name different from that of the first respondent , Bashir Sheriff?
iii.) Whether their Lordships in the Court of Appeal were correct to have held that the appellants, appeal before them was an abuse of Court Process?
iv.) Whether the lower court had the jurisdiction to affirm the decision of the trial court that the first respondent was not afforded fair hearing when he never made any claim for relief for the nullification of the primary election on June 9, 2022 where the second respondent was returned as the winner of the said election?
v.) Whether the Court of Appeal had lawful jurisdiction in view of the totality of evidence adduced by the first respondent in his suit, that he had entitlement to reliefs through an originating summons?
vi.) Whether the third respondent’s deliberate effort to not monitor the primary election on June 9, 2022 could invalidate the election?
ISSUES RAISED BY RESPONDENT’S BRIEF
As for the first respondent’s brief of argument, two issues were raised for determination. They summarily are;
i.) Whether the lower court was right when it held that trial court could adjudicate the matter on the first respondent’s Originating Summons?
ii.) Whether the only valid primary held as ruled by the lower court was that on May 28, 2022, which produced the first respondent as the Senatorial candidate for Yobe North Senatorial District?
SUMMARY OF ARGUMENT FROM APPELLANT’S COUNSEL
The learned senior counsel of the appellants focused on the first issue raised by the appellant side which was on whether the Originating Summons procedure which was employed by the first respondent to invoke the jurisdiction of the trial court and was supported by the lower court, was valid. The learned senior counsel argued in the negative. Pointing out firstly, that matters relating to fraud were both raised by the appellant and the first respondent which took away the first respondents suit out of the Originating Summons Procedure. Secondly, Exhibit 8 and 9 said to be the alleged results of the primary election held on May 28, 2022 which the first respondent purportedly won was denied by the appellant as its deeds or documents, which alongside the allegation of fraud, made the suit to be one of hostility. Thirdly, Exhibit 8 stated that the alleged primary election held on May 28, 2022, was in respect of a non-existent constituency known as “Zone C” and not the Yobe North Senatorial District which the first respondent claimed candidacy in his suit. Furthermore, oral evidence would have to be given to attest to the “Zone C” in Exhibit 8 to be the Yobe North Senatorial District.
Fourth, the learned senior counsel argued that Exhibit 7, 8 and 9 did not show nay date which the said result was made and an undated document is a worthless piece of paper that has no evidential nature in law. He went on to state that the same Exhibits did not emanate from the appellant as there was no stamp or seal of the appellant on any of the documents. He cited A. P. C. v. Elebeke  10 NWLR (pt. 1837) 1, 45, paras C-D.
He further posited that Exhibit 20C which was purportedly the third respondent (INEC) report showed that there was no valid primary election as it was not conducted by the National Working Committee of the appellant, but by a planning committee and it was conducted for a pseudo-constituency which known as “ZONE C”, which was non-existent. Same was found in Exhibits 12, 20A and 20B.
The learned senior counsel accordingly pointed out a conflict in names in respect to Exhibit 20C and Exhibit 10, having the names Alhaji Bashir Sheriff and Bashir Sherrif Machina respectively, which are names different from Bashir Sheriff, found on the Courts Record. Similar contentions were made with regards to Exhibit 13 and 14.
Finally, he canvassed that Exhibit 18 attached to the further affidavit in support of the Originating Summons was an unsigned document and of doubtful origin as it has does not have the signatures of the National Chairman and National Secretary of the appellant even though it had their names, and thus had no probative value. Going further to urge the court to rule the appeal in the appellants’ favour.
SUMMARY OF ARGUMENT FROM RESPONDENT’S COUNSEL
While referring to paragraphs 6, 7, 8, 9, 10, 11 and 12 of the appellant’s counter-affidavit, the learned senior counsel for the first respondent submitted that the appellant reviewed and rescheduled the date of May 28, 2022 as against May 27, 200, to be held on June 9, 2022. He further submitted 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. The appellant not controverting this, put an end to the allegation that the primary election was conducted the Yobe State Chapter of the appellant. Further submissions were made by the learned senior counsel, such as the fact that the name of the first respondent which was raised as a contention by the appellants’ learned senior counsel, was not a fact in issue. That the allegations of fraud was just a figment in the imagination of the appellant and that the grounds of commencement of action started in the trial court by the first respondent were not an issue brought up in the trial court and thus, can not be brought up on appeal, and so forth.
SUMMARY OF REPLY BRIEF
The appellants learned counsel duly replied by submitting that there was no evidence that Alhaji Danjuma Isa Munga was appointed by the National Working Committee of the appellant to be chairman of any primary election in Yobe State. Also, relying on State v. Onaguruwa (1992) 2 SCNJ 1, 20, learned counsel submitted that it is never too late to raise an issue of jurisdiction or the lack thereof, of a court to determine the matter.
SUMMARY OF RESOLUTION OF SOLE ISSUE
The leading judgement given by Chima Centus Nweze, JSC, was a resolution of the sole issue of Originating Summons as the procedure instituted by the first respondent as the means to bring action to court. Particularly whether it was valid or not. It is from here, that his Lordship, struck out the suit of the first respondent as it was rendered invalid by means of his Originating Summons procedure, in light of the circumstances surrounding it. He relied on a landmark pronouncement given by Cotton L.J. in Re Giles and Personal Advance Co. v. Mitchell (1880) 43 Ch. D 391, the Law Lord explained the purpose of the Originating Summons procedure 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.
He also relied on namely, the cases of Re Powers, Lindsell v. Phillips (1885) 30 Ch. D 291 and Standard Cleaning Services Company v. The Council of Obafemi Awolowo which upheld the fact that the Originating Summons procedure could not be used in a matter where there was a dispute of facts, or even the likelihood of such disputes. Where there was an air friction in the proceedings, then an Originating Summons was not to be used. He reproduced Paragraphs 15, 16, 17, 18, 19,20 and 29 of the affidavit supporting the Originating Summons filed at the trial court to prove that there was in fact an allegation of fraud in the proceeding. Then went on to cite Order 3 Rule 2 (b) of the Federal High Court (Civil Procedure) Rules, 2019, which provides that where a suit is based on an allegation of fraud, it must not be commenced by Originating Summons.
It was with this and other authorities that his Lordship ruled against the first respondent, striking out his suit.
The crux of the matter was the Originating Summons procedure instituted by the first Respondent at the trial court to bring action for adjudication. The Originating Summons served as the foundation for his case as it was the start-up of his suit. Where a foundation is faulty and breaks down, the entire building comes crumbling down with it. This is exactly the case with the suit of the first Respondent. The learned Justice was quick to recognize this breaking point in the case and rightly used as a means to invalidate the suit of the first Respondent.
With the aforementioned relevant judicial and statutory authorities provided by the learned Justice and especially that of Order 3 Rule 2 (b) of the Federal High Court (Civil Procedure) Rules, 2019, the suit of the first Respondent was faulty at its roots. Though the appellants did not bring up the issue at the trial court, a fact which the learned counsel of the first Respondent latched on to, they did however adduce the issue in this case in challenging the jurisdiction of the Court of Appeal to affirm the decision of the trial court in the acceptance of the Originating Summons procedure instituted by the first Respondent, and had a judicial authority to back them, which was the case of State v. Onaguruwa (1992) 2 SCNJ 1, 20. Stating therefore that it is never too late to raise an issue of jurisdiction in a matter as they did.
Also, it is the duty of Justices/Judges to ensure that justice is attained as the final result of adjudication. Wherefore, an unlawful practice is instituted in Court, the Justice has the mandate to point out such. Which was the case as the Originating Summons Procedure was unlawful within the context that it was used by the first Respondent at the very instance of the case. It would be heinous if the Justice overlooked this for whatever reason entailed. Thus, the Justice is performing his mandate, with the justification of the relevant statutory and judicial authorities mentioned in the summary part of his judgement.
However, if the legal proceedings were commenced by the first Respondent by way of a Writ of Summons, his suit would not have been struck out. This was pointed out by the learned Justice himself as an alternative means by which the suit would have been valid. This is because the allegations of fraud adduced in the affidavits and counter-affidavits of the parties were criminal in nature and thus had the burden to be proven beyond reasonable doubt even in a civil proceedings, by means of a Writ of Summons. The learned Justice cited Section 135 (1) of the Evidence Act 2011 and UAC Ltd. v. Taylor (1936) 2 WACA 70 and two other judicial authorities to supplement their fact.
The judgement thus, was on all accounts fair, seeing that in addition to the position of law for commencement of the Originating Summons procedure and its relevant context, the alternative means for commencement was also given by the learned Justice.
On the contrary, it is submitted that, as rightly posited by the learned justices of the supreme court, the conduct of another primary election on the 9th of June, where Lawan emerged was a breach of Section 84(5) of the Electoral Act and Section 285 of the 1999 constitution, as the APC never cancelled the one held on May 28th before organizing another. Besides, Lawan had in an undisputed letter to APC, voluntarily withdrew his participation in the May 28th primary election for the presidential primaries.
Furthermore, INEC was specific that it witnessed the May 28th primaries that produced Machina but did not witness that of June 9th, because there was no notification from APC to that effect. Hence, on this stance, it is safe to say that the judgment was not completely fair as the purported election that brought the emergence of Lawan was marred with irregularities.