By Abubakar-D.-Sani

Introduction

The enactment, last month, by the Chief Judge of the Federal High Court of the Federal High Court (Pre-Election) Practice Directions 2022, has predictably kick-started a flood of challenges to the outcome of the recently concluded political party primaries by aggrieved aspirants. The Directions were reportedly made pursuant to the provisions of Sections 254, 285(9), (10) and (14) of the Constitution, as well as those of Sections 29(5) and 84(14) of the Electoral Act 2022. See the Preamble to the Directions.

The aforesaid provisions of the Electoral Act, 2022, in particular, are instructive. The first, i.e., Section 29(5) stipulates that:

“An aspirant who participated in the primaries of his political party who has reasonable grounds to believe that any information by the political party’s candidate in the affidavit or any document submitted by that candidate in relation to his constitutional requirement to contest the election is false, may file a suit at the Federal High Court against the candidate seeking a declaration that the information contained in the affidavit is false”.

The second one, Section 84(14), provides that: “Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party have not been complied with in the selection or nomination of a candidate of a political party or election, may apply to the Federal High Court for redress”.

The Directions

I believe the juxtaposition of the above provisions of the Electoral Act with those of Rule 4(1) of the said Directions might be a boon for Defendants (or Respondents) in pre-election matters filed in that court. Before outlining my reasons for holding that view, it is necessary to review the said provisions of the Directions, as follows:-

– “4(1): Every pre-election matter shall be commenced by an Originating

Summons as specified in Forms 3, 4 or 5 of Appendix 6 to the Federal High Court (Civil Procedure) Rules with such variations as circumstances may require

(2) The Originating Summons shall be accompanied by:

a) an affidavit setting out the facts relied upon;
b) copies of the exhibits to be relied upon;
c) a written address;
d) an affidavit of non-multiplicity of action on the same subject matter.
The Federal High Court (Civil Procedure) Rules, 2019

It can be seen that the Directions explicitly adopt the provisions of the Federal High Court Civil Procedure Rules 2019 (Order 3 Rules 6, 7, & 9) as the prescribed mode of initiating pre-election matters. Those provisions are as follows:-

Rule 6: “A person who claims to be interested under a deed, will, enactment or other written instrument may apply by Originating Summons for the determination of any question of construction arising under the instrument and for a declaration of the right of the person interested;

Rule 7: “A person who claims any legal or equitable right in a case where the determination of the question whether such a person is entitled to the right depends upon a question of construction of an enactment, may apply by Originating Summons for the determination of such question of construction and for a declaration as to the right claimed;

Rule 9 (1): “An Originating Summons shall be as specified in the Forms 3, 4 or 5 in Appendix 6 to these Rules, with such variations as circumstances may require;

(2) An Originating Summons shall be accompanied by:-

a) an affidavit setting out the facts relied upon;
b) copies of the exhibits to be relied upon;
c) a written address; and
d) an affidavit of non-multiplicity of action or the same subject matter”
Nature of Originating Summons

Given that virtually the only reliefs which a court can grant by means of originating summons are declarations and injunctions, it is imperative to discuss the jurisprudence behind both reliefs. The pre-eminent principle is that, both of them are equitable. This means that they are granted entirely at the discretion of the court. See ADEBAYO v T.S.G. NIG. LTD

(2013) All FWLR Pt. 666 pg. 555 @ 563G and AROWOLO v OLOWOOKERE (2012) All FWLR Pt. 606 Pg. 398 @ 415G. See also UDU v UNUDIKE (2008) 10 NWLR Pt. 1093 Pg. 24 @ 29F, where the court held that:

“The grant of a declaratory relief is within the discretion of the court, and the Plaintiff to succeed, he must give evidence establishing his entitlement to the declaration, and he should not rely on (the Defendants’) admission. A declaration cannot be granted on admission or consent of the Defendant: Motunwase v Sorungbe (1988) 5 NWLR Pt. 92 Pg. 90. The Plaintiff must satisfy the court by credible evidence that he is entitled to the declaration: Olisa v Asojo (2002) 1 NWLR Pt. 747 Pg. 13 @ 31”.

In ODE v BALOGUN (2002) FWLR Pt. 115 pg. 693 @ 707 the Court of Appeal followed the decision of the Apex Court in Agbaje v Agboluaje (1970) 1 All NLR Pg. 21 @ 26 where it held that:

“The general theme of judicial observations is that, declarations are not lightly to be granted. The power should be exercised sparingly and with great care and jealousy, with extreme caution, with the utmost caution . . . the power to grant a declaration should be exercised with a proper sense of responsibility under a full realisation that, judicial pronouncements ought not to be made unless there are circumstances that call for their making”.

Finally, see DUMEZ v NWAKHOBA (2009) All FWLR pt. 461 pg. 842 @ 850G where the Apex Court held that:

“The law on the requirements of a Plaintiff to plead and prove his claims for declaratory reliefs on the evidence called by him without relying on the evidence called by the Defendant, is settled. The burden of proof on the Plaintiff in establishing declaratory reliefs to the satisfaction of the court is quite heavy, in the sense that such declarations are not granted even on admission by the Defendant where the Plaintiff fails to establish his entitlement to the declaration by his own evidence. In other words, declarations of right . . . cannot be made on admission or in default of pleading by the Defendant, not to talk of reliance on the evidence of the Defendant”.

Affidavit Evidence in Originating Summons

Given that affidavits are the primary (if not quite the exclusive) means of giving evidence in trials by originating summons, it is important that Defence Counsel be extremely careful to resist the tendency (perhaps, occasioned by sheer force of habit) of deposing to affidavits by themselves or their clerks on behalf of Defendants. Even though Section 115 of the Evidence Act, 2011 permits such second-hand information to be contained in an affidavit, it was recently held that this depends on the purpose for which it is tendered. If it is sought to establish the truth or veracity of those ‘facts’ or information, they are hearsay and inadmissible. See IBETO vs OGUH (2022) LPELR – 56803, where the Court of Appeal held that “while it is correct that Section 115(4) of the Evidence Act, 2011 permits a deponent to swear to facts derived from a third party in an affidavit insofar as the source of his information is properly disclosed, such depositions are of very little forensic utility, as they constitute hearsay evidence. The factum that such information was given is all that there is to such information, but qualitatively, the truth of such information is a different thing entirely: it is hearsay evidence as to the truth, which remain inadmissible. See Orunola v Adeoye (1995) 6 NWLR Pt. 401 Pg. 338 @ 353 per Nsofor, JCA. Hearsay evidence is given by a person who cannot vouch for the truth thereof. It is a piece of evidence which does not derive its value solely from the credit given to the witness himself, but rests in part on the veracity and competence of some other person, e.g. the statement of a person who is himself not called as a witness, but what he said is repeated by another witness who is called. See Ojo v Gharoro (2006) 2 – 3 S.C. 105, That is why it is always ill-advised for a Lawyer or his clerk or secretary to depose to facts intended to prove a case, as they are not in any position to vouch for the truth or accuracy of information derived from clients . ..”.

Conclusion

To the extent that the reliefs claimed in Originating Summons are invariably declarations and injunctions, it is obvious that a bounden legal duty is placed on a Plaintiff in a pre-election matter to satisfy the requirements for the grant of such reliefs. Evidence is clearly key, in this regard. The consequences of failure are obvious, as it would present the Defendant with something of a ‘technical’ victory (if not exactly a walkover), leaving the losing party to wonder what might have been.