What type of action/case is Originating Summons Procedure best suited? I will commence by throwing more light on an Originating Summons Process. In the case of Hussaini Isa Zakirai vs. Salisu Dan Azumi Muhammad & Ors (2017) LPELR – 42349 (SC), this Court has this to say: “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. It is usually heard on affidavit evidence and involve questions of law rather than issues of fact.” 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 vs. the Council of Obafemi Awolowo University, Ile lfe (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 he 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.” Per ONNOGHEN, C.J.N. at P. 6, Paras. A-B.
ELDER DR. FRIDAY SANI v. KOGI STATE HOUSE OF ASSEMBLY (2019-LCER-36852-SC)
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Facts
This is an appeal against the judgment of the Court of Appeal Holden in Abuja in appeal No. CA/A/540/2018 delivered on the 20th day of March, 2018 in which the Court allowed the appeal of the present respondents against the judgment of the Kogi State High Court in suit No. IDHC/6/2017 delivered on the 29th day of June, 2017 which was accordingly set aside. The lower Court remitted the suit to the Honourable Chief Judge of Kogi State to be assigned to another Judge for trial by pleadings.
The appellant as claimant before the Kogi State High Court No. 2 Lokoja instituted an action against the respondents by way of Originating Summons and sought 19 reliefs.
The questions submitted to the trial Court for determination are as follows:
1. WHETHER Order 10 Rule 1 of the Standing Rules of the Kogi State House of Assembly is not offensive to the spirit and letters of the Nigerian Constitution (as amended), undemocratic, illegal; null and void, insofar as it empowers members of the majority party in the House of Assembly of Kogi State, to determine and/or elect, who represents the minority party, as their (minority) leader, in the State House of Assembly.
2. WHETHER the All Progressives Congress, controlled 1st defendant presided over by the 2nd defendant did not act wrongfully, and their said action liable to be set aside, when they discountenanced the nomination letter of 20th March, 2017 vides which majority members of the minority party in the State House of Assembly elected, and communicated their election of the Plaintiff as their leader at the Kogi State House of Assembly.
3. Assuming but not conceding to the legality of Order 10 Rule 1 of the Standing Rules of the Kogi State House of Assembly, WHETHER the purported allocation of the position of minority leader to the 3rd defendant by the 1st and 2nd defendants when neither nomination nor election was conducted, is not illegal, null and void.
4. WHETHER the purported emergence of the 3rd defendant as the minority leader on the determining choice of the majority party members and despite the protestation of the minority party members whom he is meant to represent, is not illegal, null or void and liable to be set aside.
5. WHETHER the Plaintiff’s Presentation of a motion on a matter of urgent public importance titled ?Save the Souls of Kogi Workers? and dated 17th January 2017 on the floor of the Kogi State House of Assembly, is wrongful and justifiable as a reason for 3rd defendant or any member of his executive or the members or any member of the 1st defendant to express in words action, any animosity towards the Plaintiff.
6. WHETHER the 1st defendant has the power to suspend or purport to suspend the plaintiff from the performance of his legislative duties
7. WHETHER in view of the determination of questions 1, 2, 3, and 4 above, the 3rd defendant is entitled to remunerations for the office of minority leader of the Kogi State House of Assembly from the 21st March , 2017 when he purported assumed to that position.
8. WHETHER the Plaintiff is not deemed to have been properly elected to the position of the minority leader of the Kogi State House of Assembly from 21st March 2017, when his nomination and election by the minority members of the 1st defendant was communicated the 2nd defendant and thus entitled to all the privileges and entitlement thereof.
9. WHETHER the 1st and 4th defendants have the powers, to unilaterally create additional two principal offices/position or any office/position at all in the 1st defendant assembly, when there is no provision in any law, or the rules of the 1st defendant enabling the action.”
Thereafter appellant as plaintiff claimed the following nineteen reliefs:
“1. A DECLARATION that Order 10 Rule 1 of the Standing Rules of the Kogi State House of Assembly is offensive to the spirit and letters of the Nigerian Constitution (as amended), undemocratic, illegal, null and void, insofar as it empowers members of the majority party in the House of Assembly of Kogi State, to determine and/or elect, who represents the minority party, as their leader, in the House of Assembly.
2. A DECLARATION that the All Progressives Congress’ controlled 1st defendant presided over by the 2nd defendant acted wrongfully, and their said action liable to be set aside, when they discountenance the nomination letter of 20th March, 2017 vides which majority members of the minority party in the State House of Assembly elected, and communicated their election of the Plaintiff as their leader at the Kogi State House of Assembly.
3. A DECLARATION that the purported allocation of the position of minority leader to the 3rd defendant by the 1st defendant when neither nomination nor election was conducted is illegal, null and void.
4. A DECLARATION that the purported emergence of the 3rd defendant as the minority leader on the determining choice of the majority party members, and despite the protestation of the minority party members whom he is meant to represent, is illegal, null and void, and liable to be set aside.
5. A DECLARATION that the Plaintiff’s presentation of a motion on a matter of urgent public importance titled, “Save the souls of Kogi workers” and dated 17th January, 2017 on the floor of the Kogi State House of Assembly, is neither wrongful nor justifiable as a reason, for either the 4th defendant, any member of his executive, or the members of the 1st defendant to express in words or action, any animosity towards the Plaintiff or victimize him under the guise of discipline, suspension or any guise whatsoever
6. A DECLARATION that the 1st defendant has no powers to suspend, or purport to suspend the Plaintiff from the performance of his legislative duties.
7. A DECLARATION that the 3rd defendant is not entitled to remunerations for the office of minority leader of the Kogi State House of Assembly, from 21st March, 2017 when he purportedly assumed to that position or at all.
8. A DECLARATION that the Plaintiff is deemed to have been properly elected to the position of the minority leader of the Kogi State House of Assembly from 21st March, 2017, when his nomination and election by the minority members of the 1st defendant was communicated the 2nd defendant, and thus entitled to all the privileges and entitlements thereof.
9. A DECLARATION that the 1st and 4th defendants have no powers, to unilaterally create additional two principal offices/positions or any office/position at all in the 1st defendant assembly, when there is no provision in any law, or the rules of the 1st defendant enabling the action.
10. AN ORDER setting aside Order 10 Rule 1 of the Standing Rules of the Kogi State House of Assembly insofar as it empowers members of the majority party in the House of Assembly of Kogi State, to determine and/or elect, who represents the minority party, as their leader, in the House of Assembly.
11. AN ORDER setting aside the purported election of the 3rd defendant under whatever guise and name called, to the position of minority leader of the Kogi State House of Assembly.
12. AN ORDER of perpetual injunction restraining the 3rd defendant from parading, or further parading himself, as the minority leader of the Kogi State House of Assembly.
13. AN ORDER of perpetual injunction, restraining the defendants, whether jointly or severally, by agents, privies or assigns, from recognizing the 3rd defendant as the Minority Leader of the Kogi State House of Assembly and/or giving any remuneration in respect of that office to the 3rd defendant.
14. AN ORDER directing the 3rd defendant to refund every and any remuneration received by him in connection with the office of, or in capacity of minority leader of the Kogi State House of Assembly, from 21st March, 2017 when he purported assumed to that position.
15. AN ORDER reinstating the Plaintiff to the position of minority leader of the Kogi State House of Assembly forthwith.
16. AN ORDER directing the defendants, to compute and pay, and continue paying to the Plaintiff forthwith all the entitlements and allowances accruing to him as the minority leader of the Kogi State House of Assembly from 21st March. 2017.
17. AN ORDER setting aside the additional two principal offices/positions, i.e deputy minority leader, and deputy minority whip, which was unilaterally created in the 1st defendant assembly without any instrument or enabling law in the behalf
18. AN ORDER OF PERPETUAL INJUNCTION, restraining the defendants, whether in collaboration with each other or not from taking any step, or doing anything, either by way of invitation for explanation, or attempt to find fault with the aim of suspension? insofar as same will prejudice the Plaintiff in his legislative duties and office.
19. AN ORDER of perpetual injunction restraining the 1st defendant from suspending, or attempting to suspend the Plaintiff from his legislative duties.”
In support of the Originating Summons was an affidavit of 28 paragraphs to which Exhibits A, B & C were attached. The respondents herein as defendants filed their counter affidavit in opposition to the originating summons. During the pendency of the proceedings, appellant was suspended by the 1st respondent from the plenary sittings of the House of Assembly “Pending the final outcome of the litigation in Court.”
On 5th June, 2017, certified true copy of votes and proceedings and the motion moved to suspend the appellant was tendered from the Bar and admitted in evidence without any objection from the respondents, and marked as Exhibit CI.
On 29th June, 2017, the trial Court delivered its judgment and upheld, in part, the reliefs claimed by the appellant. In particular, appellant relief 6 was upheld. This relief is for:
“A declaration that the 1st defendant has no powers to suspend or purport to suspend the plaintiff from the performance of his legislative duties.”
The respondents were dissatisfied with the judgment of that Court and filed a Notice of Appeal on 21st July, 2017 containing 3 grounds of appeal in the Court below. Appellant herein filed his brief of argument and raised objection to the competence of the appeal and the jurisdiction of the Court to determine same.
On 20th day of March, 2018, the Court of Appeal, Abuja Judicial Division delivered its judgment allowing the respondents’ appeal and remitted the suit to the Honourable Chief Judge of Kogi State to be assigned to another judge for trial by filing pleadings instead of by way of Originating Summons.
Being dissatisfied with the decision of the Court below, appellant filed a Notice of Appeal on 22nd day of March, 2018.
Issues
1. Whether the Court below violated the right to fair hearing of the appellant when it granted reliefs not sought by the respondents in their notice and grounds of appeal and to proceed to hold in judgment that the suit be remitted to the Hon. the Chief Judge, Kogi State to be assigned to another judge for trial by pleadings. (Grounds 1, 2, 4 & 5 Notice and Ground of appeal)
2. Whether the Court below was right to overrule the appellant’s preliminary objection to the competence of the appeal of the respondents and to proceed to hold that the appeal of the respondents not academic, hypothetical or an abuse of Court process.
Lead Judge(ment)
WALTER SAMUEL NKANU ONNOGHEN, C.J.N. (Delivering the Lead Judgment):
Held
Appeal allowed in part.
Alternate Citations
Read Full Judgment
Counsel:
J.S. Okutepa, SAN with him, Messrs Sylvia, E. Okopi, Ojonimi S. Apea, Joy E. Adeloko and O.F. Jedidiah…..For Appellant
And
Abdulwahab Muhammad, Esq. with him A.M. Adoyi, Esq. for 1st respondent.
Chief A.A. Adeniyi with him, Messrs Polycap Nwachukwu and Umar Abdulhameed for 2nd & 3rd respondents.
M. Y. Abdullahi, Esq. with him, Messrs F. O. Ekpa and N. O. Salifu for 4th – 7th respondents…..For Respondent
For Appellant(s)
For Respondent(s)
Counsel’s Photograph(s) Needed.