DR. TONY MACFOY & ORS V. MUSA MUHAMMAD CHOLA & 1,325 ORS (2022)

Background

This appeal arose from a dispute concerning the conduct and outcome of the All Progressives Congress (APC) Local Government Area congresses held in Kano State on 4 September 2021. The congresses allegedly produced competing results. The 1st–1320th respondents commenced proceedings at the High Court of the Federal Capital Territory, Abuja, by originating summons. They claimed that they were the authentic winners and sought declarations validating their results, orders compelling the APC and its officers to recognise those results, the nullification of competing lists, and an injunction preventing reliance on any other list of elected local government executives and delegates.

The respondents maintained that although their result sheets had been submitted to the APC’s national headquarters in Abuja, the party subsequently refused to recognise them and allegedly substituted another list. The appellants, who were members of the APC Local Government Congress Committee for Kano State, contested the claims. Their counter-affidavit raised serious factual disputes concerning how the congresses were conducted, the composition and authority of the congress committee, the competing reports, the identity of the actual winners, and allegations that documents relied upon by the respondents had been falsified.

The trial court rejected the appellants’ objections, assumed territorial jurisdiction, held that the dispute could be resolved without investigating the conduct or outcome of the Kano congresses, and granted the respondents’ reliefs. The appellants appealed.

Issues

1. Whether the action was properly commenced by originating summons in view of the substantial conflicts in the affidavit and documentary evidence.
2. Whether the High Court of the Federal Capital Territory had territorial jurisdiction over a dispute substantially arising from events occurring in Kano State.
3. Whether the respondents’ preliminary objection challenging the competence of the appeal was valid.
4. Whether the trial court was right to grant the declarations and consequential orders.

Ratio Decidendi

The Court of Appeal unanimously allowed the appeal. It held that originating summons is appropriate for questions of construction or interpretation of a deed, will, enactment, or other written instrument where the material facts are not substantially disputed. It is not a suitable procedure for resolving acrimonious factual controversies requiring pleadings, oral testimony, and cross-examination.

Under Order 2 rule 3 of the High Court of the Federal Capital Territory (Civil Procedure) Rules 2018, the procedure is intended to provide a simple and speedy means of determining questions of construction and associated legal rights. The existence of some disagreement does not itself prevent the use of originating summons; what is prohibited is a substantial dispute of fact. In this case, the dispute was not merely about interpreting the APC Constitution or determining the legal effect of documents. It required the court to determine which of two competing congress results was genuine, who conducted the congress, whether particular persons were elected, and whether documents had been falsified. Those matters could not fairly be resolved by affidavit evidence alone.

The court further held that the High Court of the Federal Capital Territory lacked territorial jurisdiction. Territorial jurisdiction is the geographical area within which a court may lawfully exercise its authority, and it is conferred by the law establishing the court. Although certain decisions and documents were made or received at the APC headquarters in Abuja, the real and substantial dispute concerned the conduct and outcome of congresses held wholly in Kano State. The alleged recognition, rejection, or substitution of results in Abuja was secondary and inseparably connected with the principal Kano dispute.

Court Findings

The court rejected the respondents’ preliminary objection to the appeal. It held that a supporting affidavit is not required for a preliminary objection founded solely on questions of law under Order 10 rule 1 of the Court of Appeal Rules 2021. Where factual grounds are raised, an affidavit may be appropriate. The affidavit filed in this case was therefore struck out, but the objection itself remained for consideration.

The court also held that a preliminary objection should ordinarily challenge the hearing of an appeal as a whole, not merely selected grounds where other competent grounds remain capable of sustaining the appeal. Consequently, the respondents’ objection directed at particular grounds of appeal was inappropriate. A defective particular to one ground does not automatically invalidate other particulars or the entire ground. The court struck out a particular referring to non-existent exhibits but preserved the remaining competent aspects of the appeal.

The omission of the word “members” from the appellants’ description on appeal did not alter the parties or their capacities. The description substantially identified the same committee and caused no prejudice or confusion. The appeal also retained practical value because the dispute concerned live rights and contested party congress results; it was not academic or hypothetical.

The court found that the respondents’ reliance on section 87(9) of the Electoral Act 2010 was misplaced. That provision concerns the determination of candidates by political parties for elections and did not govern the APC’s local government congresses. The action was consequently not a constitutional pre-election matter under section 285 of the Constitution.

Conclusion

The appeal was allowed. The proceedings and judgment of the High Court of the Federal Capital Territory in Suit No. FCT/HC/CV/2532/2021, delivered on 17 December 2021, were set aside. The Court of Appeal held that the trial court lacked territorial jurisdiction and that the action had also been commenced by an inappropriate procedure. It was unnecessary to determine the remaining complaints on the merits of the disputed congress results.

Significance

Macfoy v. Chola reinforces two important procedural safeguards in Nigerian civil litigation. First, parties cannot use originating summons to bypass a full trial where affidavit evidence reveals substantial and central factual disputes, particularly allegations of forgery or falsification. Secondly, litigants must bring proceedings in a court with territorial jurisdiction over the real cause of action. The decision also illustrates the Court of Appeal’s preference for substantial justice over technical objections, while preserving the requirement that parties comply with the rules governing notices of appeal and preliminary objections.