AIR MARSHAL ISAAC M. ALFA V. SENATOR AIDOKO ATTAI & ORS (2017)

Background

This appeal arose from a dispute concerning the Peoples Democratic Party’s primary election conducted on 7 December 2014 to select its candidate for the Kogi East Senatorial District. Air Marshal Isaac M. Alfa and Senator Aidoko Attai were among the aspirants. At the conclusion of the primary, the PDP forwarded Senator Attai’s name to the Independent National Electoral Commission as its candidate. Alfa challenged that outcome before the party’s Senatorial Appeal Panel, the National Chairman and the National Executive Committee. When those internal complaints did not succeed, he commenced proceedings at the Federal High Court, Abuja, under section 87(9) of the Electoral Act 2010.

The suit was initiated by originating summons. Alfa alleged, among other things, that the PDP had failed to comply with its electoral guidelines and had sponsored a candidate who did not win the primary. The respondents opposed the procedure. INEC, in particular, filed a preliminary objection contending that the suit was hostile and contentious and ought to have been commenced by writ of summons. The Federal High Court dismissed the objection and accepted the originating summons procedure. The Court of Appeal reversed that ruling, holding that the factual disputes could only properly be resolved through pleadings and oral evidence. Alfa appealed to the Supreme Court.

Issue

The principal issue was whether, having regard to the conflicting affidavits, contradictory documentary exhibits and allegations of misconduct and criminality, the action could properly have been commenced and determined by originating summons.

Ratio Decidendi

The Supreme Court, in a unanimous decision delivered by Nweze JSC, dismissed the appeal and affirmed the Court of Appeal. The Court held that originating summons is appropriate where the facts are undisputed, or where there is no likelihood of a substantial dispute of fact, and where the principal question concerns the construction of a statute, instrument, deed, will, contract or other document. It is not the proper procedure for a hostile action involving substantial and irreconcilable disputes of fact.

A “substantial dispute” is more than a mere disagreement between parties. It is a real, material and considerable controversy which cannot fairly or satisfactorily be resolved solely from affidavit evidence. In this case, the PDP’s affidavit reportedly asserted that Alfa, rather than Attai, had won the primary. The PDP also disowned a result sheet relied upon by Alfa. The parties disputed the authenticity, identity and contents of important result sheets, including documents associated with the returning officer. These conflicts raised the fundamental factual question of who actually won the primary election. The Supreme Court agreed that such a question required settled pleadings, oral testimony and cross-examination.

The Court further held that allegations suggesting disruption of the primary, forgery or other criminal conduct made the originating summons procedure particularly inappropriate. A person against whom such allegations are made must have a fair opportunity to confront and test the evidence through cross-examination. The trial court therefore erred when it selected which affidavit evidence to believe and attempted to reconcile extensive and contradictory documentary materials without hearing the witnesses.

Court Findings

The Supreme Court explained that Nigerian civil procedure recognises several originating processes, including writ of summons, originating summons, originating motions and petitions. Although section 87(9) and (10) of the Electoral Act created the substantive right to challenge non-compliance with party guidelines, the provisions did not prescribe that every such action must be commenced by originating summons. The applicable rules of court determine the procedural mode unless a statute provides otherwise.

The Court rejected the appellant’s argument that the need for expedition in pre-election matters justified the procedure adopted. Speed and convenience cannot displace the requirements of a fair trial where the controversy is genuinely factual. Nor could the appellant rely on authorities unrelated to originating summons merely because they discussed affidavit evidence. The Court cautioned counsel against filling briefs with inapplicable authorities, observing that this may obscure the real issues and amount to unnecessary legal grandstanding.

The Court also stated the general principle that a party who actively participates in an action commenced by an irregular procedure without promptly objecting may be treated as having acquiesced in the irregularity. That principle did not assist the appellant here because the respondents had objected to the procedure, and the objection itself formed the basis of the appellate proceedings.

Conclusion

The appeal was dismissed. The Supreme Court ordered that the case be remitted to the Chief Judge of the Federal High Court for urgent reassignment to another judge. The new judge was directed to order pleadings, allow the parties to join issues, and hear and determine the substantive dispute expeditiously. The Supreme Court did not decide who won the PDP primary; it decided only that the dispute had been commenced by the wrong procedural process.

Significance

The decision is an important authority on the boundary between originating summons and writ proceedings in Nigerian litigation. It confirms that originating summons cannot be used to obtain a speedy determination where the affidavits disclose a substantial, hostile and material conflict of fact. Courts must not resolve such conflicts by choosing between competing depositions without oral evidence. Where the outcome depends on witness credibility, disputed documents, allegations of forgery or criminal conduct, pleadings and adversarial trial are ordinarily indispensable. The case also reinforces the constitutional importance of cross-examination and fair hearing in electoral and other contentious proceedings.