The Originating Summons Conundrum: Procedural Efficiency Versus Substantive Justice in Nigerian Pre-Election Litigation

Contributor: Mr. Oluwaseye Thompson Adeboye

Introduction

The Nigerian electoral landscape is uniquely characterized by a compressed judicial timeline for the resolution of pre-election disputes. On the rise has been the use of time limits in election related matters (whether pre or post-election related matters), and this has increasingly assumed constitutional flavor. Section 285 Constitution of the Federal Republic of Nigeria 1999 (as amended) (hereinafter referred to as the 1999 CFRN) has express provisions relating to time limits for both pre-election and post-election matters.^[1] In judgments which can be likened to the Biblical instruction of “touch not my anointed”, Courts have treated these statutory periods and time limitations as untouchable and inviolable. By virtue of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Electoral Act, 2022, pre-election matters must be commenced and concluded within a 180-day period. This stringent timeframe is a legislative response to the need for electoral certainty and the expeditious resolution of disputes before the main polls.

To underscore the point being made, it is important to note that a recurring theme in electoral law and decisions arising from them is the fact that election matters are sui generis and, as such, ought to be treated as such.^[2] This much is clear and beyond peradventure that citing a sea of judicial decisions might not necessarily be of utilitarian value. While in LP & Ors v Amao,^[3] the Court of Appeal per Barka J.C.A apparently brought to the fore, the essence of the provisions of this nature that “In election matters, unlike other matters, time is always of essence. The rights of a litigant is curtailed by a time frame, after which the legal maxim, Ubi remedium may not apply,” in Olubukola & Anor v A.G Lagos State & Ors,^[4] the Court of Appeal held that “One fundamental point that must be made at this stage is the effect of timing on institution of the suit. The sui generis nature of matters relating to elections has unwittingly made the time of taking steps an important element. An otherwise legitimate claim in ordinary civil action fails to fly in election matters for failure to act within certain timelines.”

To give effect to this constitutional and statutory mandate, the Chief Judge of the Federal High Court, pursuant to the powers conferred on him, issued the Federal High Court (Pre-Election) Practice Directions, 2022. A central feature of these Practice Directions is the directive in Paragraph 4 that all pre-election matters shall be commenced by way of an Originating Summons. The stated rationale is sound on its face: an originating summons procedure, being predicated on affidavit evidence without the need for oral testimony and cross-examination, is inherently faster than a Writ of Summons, which involves pleadings, discovery, and a full trial. The objectives of the Practice Direction clearly bring the rationale into context as it seeks to “provide for a fair, impartial and expeditious determination of pre-election cases; ensure that in all election matters, the parties focus on matters which are genuinely in issue” and, very importantly, “minimize undue adjournments and delays in the conduct of matters.”

However, this quest for procedural efficiency has collided headlong with a fundamental and long-standing principle of Nigerian jurisprudence, recently re-emphasized by the Supreme Court, that cases involving contentious or disputed facts are unsuitable for determination by Originating Summons. The Supreme Court has consistently held that where facts are riotously in dispute, a Writ of Summons, leading to a full trial with viva voce evidence and cross-examination, is the appropriate vehicle for justice.^[5] This paper argues that the mandatory imposition of the Originating Summons procedure for all pre-election matters, irrespective of the factual contentiousness of the dispute, creates a profound inconsistency within the Nigerian legal system as it elevates a procedural rule which is ordinarily designed as a handmaiden to justice above the substantive justice it is meant to serve, thereby trapping litigants in a procedural Catch-22 where adherence to the Practice Directions can lead to the fatal failure of their case.

The Dichotomy of Procedures: Originating Summons vs. Writ of Summons

A clear understanding of the procedural dichotomy is essential to appreciating the conflict. An Originating Summons is designed for the determination of short questions of law, construction, or interpretation, where the material facts are not in dispute. It is a proceeding on affidavit evidence, with limited or no cross-examination, and its advantages are speed, lower cost, and efficiency.^[6] Conversely, a Writ of Summons is the standard mode of commencing actions where the facts are in serious dispute. It initiates a process of pleadings (Statement of Claim and Statement of Defence), where parties clearly define the issues in controversy. This is followed by a full trial where witnesses testify orally, are cross-examined, and documents are formally tendered. This process is indispensable for resolving conflicts in evidence, testing credibility, and making findings of fact.^[7]

This distinction of hostile or not hostile facts might not however, be helpful in reality, as the question that begs to be answered is, can a case ever be litigated without facts? Can a case suddenly become unsuited for Originating Summons because the facts are in dispute? If facts are never in dispute, would there be a reason to approach the courts in the first place? The Court of Appeal per Eko JCA in Asogwa v PDP & Ors^[8] has noted the importance of facts in a dispute as follows:

“It cannot be denied that every case is decided on the peculiar facts before the court. Facts, therefore, are the fountainhead of the law. The courts in deciding cases, determine the issues therein by relating the facts to the issues and the law. The significance and importance of facts to adjudication by the courts cannot be down played. It is for this reason the Supreme Court stated, in A.G, BENDEL STATE v. A.G., FEDERATION (1983) 1 SCNLR 239 and A.G., ABIA STATE v. A.G. FEDERATION (2005) 16 NWLR [pt.1005] 262 at 361, that facts being the fountain head of the law, decisions or determination of cases are related to the facts and each case should be considered in its factual milieu.”

It is on this basis that the Supreme Court in Sani v Kogi State HA^[9] has held that not every matter commenced by originating summons must be devoid of disputes as it is the disputes in the facts that give rise to litigation. The jurisprudence of the Supreme Court on this point is settled and unambiguous. In cases like Sulaiman & Ors v. APC & Ors,^[10] it has indeed been held that a plaintiff must fight on pleadings where all the disputes as contained in the affidavit and counter affidavits of the parties will be resolved through the test of oral cross-examination. It cannot be otherwise, as substantial disputes can only be resolved in the usual adversarial proceedings upon the settlement and exchange of pleadings, averments in pleadings borne out by oral evidence and oral evidence tested in cross-examination.

The importance of the mode of commencing a pre-election case came to the fore in APC v Bashir Sheriff^[11] wherein the 1^st Respondent had by Originating Summons filed at the trial Court, seeking that the 2^nd Respondent should not be recognized as the appellant’s candidate for the senatorial seat of Yobe North senatorial district as submitted to INEC. The crux of his case is that the candidate whose name was submitted to INEC had contested for and lost the presidential primary election but was allowed to contest another primary election without notice. The trial court had agreed with the 1^st Respondent and the said judgment was affirmed by the Court of Appeal. On an appeal to the Supreme Court, a sole issue was argued to wit, whether, in the circumstances of the appeal at the Court of Appeal especially with allegation of fraud and irreconcilable conflicts in the parties; affidavits and further affidavits, the Court of Appeal was correct to hold that the trial court was right to have adjudicated the 1^st Respondent’s case on Originating Summons. The Supreme Court per Nweze JSC in holding that the suit was improperly commenced, held the following:

“What then are the facts in this case? The facts are not to be found in submissions of counsel but in the affidavit evidence before the Court. I am aware that it is not every seeming conflict arising from affidavit evidence that would warrant the calling of or resort to oral evidence for its resolution. However, where the issues of facts are contentious and border on the copious allegations of fraudulent practices as in the first respondent’s suit, it calls for caution on the path of the Court from rushing to determine such a claim on affidavit evidence alone in an Originating Summons, as such a case is, in my view, one more suited and proper for determination on the pleadings and evidence of the parties under the procedure by way of a Writ of Summons.?

In the instant case, the bedrock of the suit before the trial Court, from a perusal of the affidavit and further affidavit of the first respondent, along with exhibits attached thereto, shows that there were allegations of fraudulent practices by both parties. It is here necessary to reproduce some material portion of the affidavit in support of the Originating Summons filed at the trial Court…I have carefully read the affidavit, further affidavits endorsed in the Originating Summons and counter-affidavits and I am of the view that the first respondent made allegations of fraudulent practices against the appellant as well as other irreconcilable conflicts.

Order 3 Rule 2 (b) of the Federal High Court (Civil Procedure) Rules, 2019, provides that where a suit is based on or alleges an allegation of fraud, it must not be commenced by Writ of Summons. Surely, any attempt “to prove the liability of the defendant” through the Originating Summons procedure, where the Affidavit (s) and Counter-Affidavits evince the subsistence of substantial disputes, must be resisted, Inakoju v Adeleke (supra), Re Sir Lindsay Parkinson.”

The Supreme Court thus sounded the death knell on the case, holding that because the dispute related to fraud and irreconcilable differences, it ought to have been commenced by Writ of Summons. The poser still remains: are there likely to be pre-election cases where issues of fraud and irreconcilable differences would not arise? Would it not make originating summons a plague for plaintiffs when they seek to bring their pre-election disputes? Will it not suddenly become a magic wand in the hands of respondents to make issues in relation to the commencement of a pre-election suit by originating summons instead of writ of summons? The Supreme Court in the same case per Agim JSC, albeit in a dissenting opinion, envisaged the bottleneck that could arise in the following words:

“Originating summons is the special method or process prescribed for the commencement of pre-election suits by Rule 4(1) of the Federal High Court of Nigeria (Pre-Election) Practice

Directions 2022 which provide that –

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 the circumstances may require.

Therefore, the commencement of this pre-election suit No. FHC/DM/CS/11/2022 by originating summons is valid, and the process is competent. The Court of Appeal correctly affirmed the decision of the trial court that the suit was validly commenced by originating summons.

In any case, assuming no provision was made by the Pre-Election Practice Directions (supra) for it as the special method for commencing pre-election suits, its use to commence such suit would not render the suit incompetent because it is one of the originating processes prescribed by Order 3 rule 1 of the Federal High Court (Civil Procedure) Rules, 2019 for commencing civil proceedings in that court. So that even if it is not the appropriate method prescribed by the Rules of Court to commence a civil proceeding of this nature, the process would not be vitiated and the proceedings can continue on the basis of that process with scrupulous regard for the legal requirements of burden and standard of proof, the demands of fair hearing and Justice delivery. This restatement has been made by this court in several decisions. See, for example, Atago v. Nwuche (2013) 3 NWLR (Pt.1341) 337 in which this court held that:

‘The form of commencement of an action does not necessarily make it incompetent. It does not matter whether the action was begun by writ of summons or by originating summons. What is important is the question of Justice of the case.

See also Famfa Oil Ltd. v. A.G.F. (2003) 18 NWLR (Pt. 852) 853 and Peoples Democratic Party v. Abubakar (2007) 3 NWLR (Pt. 1022) 515 at 544 – 545?’

An Analysis of the APC v Bashir

In the majority judgment, it is clear that the Apex Court relied on the provision of Order 3 Rule 2 (b) of the Federal High Court (Civil Procedure) Rules, 2019. We believe however, that Order 3 Rule 2 (b) might have been inapplicable in the context of the case. Instead, it is the provisions of the Federal High Court (Pre-Election) Practice Directions, 2022 that are applicable. Paragraph 2 (2) of Federal High Court (Pre-Election) Practice Directions, 2022 provides as follows:

“This Practice Direction shall apply notwithstanding the provisions of the Federal High Court (Civil Procedure) Rules, 2019.”

It is clear that the Chief Judge of the Federal High Court by the powers conferred on him made both the Rules of Court and the Practice Direction at different times and intended the derogation in the Practice Direction. The law is clear that later laws repeal the earlier ones and this is encapsulated in the maxim, Posteriora derogant prioribus. The implication of this is that the provisions of the Practice Directions are operative irrespective of the provisions of the Rules of Court. The phrase “Notwithstanding” has been given tacit judicial definition in the case of N.D.I.C. V Okem Ent Ltd^[12] where the Supreme Court per Uwaifo JSC (Rtd) held the following:

“When the term “notwithstanding” is used in a section of a statute, it is meant to exclude an impinging or impeding effect of any other provision of the statute or other subordinate legislation so that the said section may fulfill itself.”

The case of Saraki v FRN^[13] is also very important in this regard. This thus connotes that no other provision of the Federal High Court Rules can impugn or override the practice direction. While Order 8 of the Practice Direction provides that “The Federal High Court (Civil Procedure) Rules, 2019 shall apply to any issue not captured under this Practice Directions,” it only implies that the Federal High Court Rules are only applicable when the Practice Direction is silent on an issue. A cursory analysis of Order 4 of the Practice Direction under the caption “FILING OF PROCESSES” reveals that the Practice Direction adequately provides for the use of originating summons and the form in which it is to be used. As a matter of fact, the marginal note of the said Order describes it as “Commencement of action.” Although marginal notes do not ipso facto form part of the legislation, the Supreme Court has held in Yabugbe V C.O.P^[14] that it is permissible to approach a consideration of the marginal notes in order to determine the general purpose of the section being considered and the mischief it is aimed to cure with the note in mind. It thus suffices to submit that the intention of the Chief Judge of the Federal High Court is to make the provisions of Order 4 of the Practice Direction apply to the filing of processes and not the Federal High Court Rules.

There was thus the need to give the Practice Direction its proper status, especially given the fact that its application tilted towards the justice of the case. In Duke v Akpabuyo Local Government^[15] Your Lordships per Pats-Acholonu JSC held the following:

“Rules of Court are meant to be obeyed because they provide support in the administration of justice. However, it must be understood that being rules or regulations made to assist the Court in its effort to determine issues or controversies before the Court, care must be exercised in order to avoid the elevation of rules of Court to the status of a statute because rules of Court are subsidiary instrument. Consequently, rules of Court are to be used by the Courts to discover justice and not to hamper the actualization of justice. In other words, rules of Court are not sine qua non in the just determination of a case and therefore not immutable.”

In Alhaji Atiku Abubakar & Ors v Alhaji Umaru Musa Yar’adua,^[16] the Supreme Court further held:

“Rules of Court are meant to be obeyed. Of course, that is why they are made. There should be no argument about that. But there is an important qualification or caveat and it is that their obedience cannot or should not be slavish to the point that justice in the case is destroyed or thrown overboard. The greatest barometer, as far as the public is concerned, is whether at the end of the litigation process, justice has been done to the parties. Therefore, if the course of doing justice some harm is done to some procedural rule which hurts the rule…the court should be happy that it took that line of action in pursuance of justice. This court cannot myopically or blindly follow Practice Directions and fall into a mirage and get physically and mentally absorbed or lost. Let that day not come.”

The law is trite that courts should avoid slavish obedience to the rules of court at the expense of substantive justice: AG Bendel State v AGF;^[17]Oduah v FRN.^[18] The law is also trite that courts of law should frown at technicalities: State v Gwonto (1983) 1 SCNLR 142 at 160; Ochor v Ojo (2008) 13 NWLR (Pt. 891) 639.

In Alhaji Atiku Abubakar & Ors v Alhaji Umaru Musa Yar’adua,^[19] the Supreme Court per Tobi JSC (Rest His Soul) held as follows:

“The basic principle of law is that it is the object of the court to decide the rights of the parties and not punish them for mistakes they make in the litigation process and because blunders are inevitable is not fair, in appropriate case, to make a party in blunder to incur the wrath of the law at the expense of hearing the merits of the case. Rules of Court which include here Practice Directions are not intended to be ridiculously applied to a slavish point particularly if such an application will do injustice in the case.”

May we also refer to Brittana-U Nigeria Ltd v Seplat Petroleum Development Company Ltd & Ors (2016) LPELR – 40007 (SC) 1 at 58 Paras C-D per Ngwuta JSC (Bless his soul) who affirmed the same position.

The Core Inconsistency: The Unworkable Mandate

The inconsistency arises from the collision between the mandatory language of the Practice Directions and the substantive legal principles outlined above. The Practice Directions, by their blanket application, assume a fiction that pre-election matters, by their very nature, are non-contentious. This by the current attitude of the Supreme Court is a fallacy. Pre-election matters are often the most politically charged and factually complex disputes. They involve challenges to party primaries, allegations of certificate forgery, fraud, non-compliance with electoral guidelines, and questions of membership and sponsorship. As highlighted in the provided excerpts, these cases frequently involve “riotously substantial disputes,” “conflicting documentary evidence,” and “allegation of forgery.” To ask a court to resolve such serious allegations, including criminality, solely on the basis of conflicting affidavits is to ask it to do the impossible. This is thus where the dilemma arises for a plaintiff. Does he immediately obey the practice directions by commencing via an originating summons and having his case later struck out for commencing in such manner when the facts are contentious or does he disobey the practice direction, commence the action by writ of summons, arguing that the facts are contentious, but invites an immediate challenge that he is in violation of the practice directions?

The Way Forward: Reintroducing Discretion as the Solution

It may be argued that the current framework is self-defeating but the solution should not be to abandon efficiency but to reintroduce judicial discretion, which is the hallmark of a mature legal system. It is clear that the blanket mandate of the Practice Directions is the source of the problem and as such it should be replaced with a more nuanced approach. First, the Practice Directions should be amended. Paragraph 4 should be rephrased to state that pre-election matters “shall be commenced by an Originating Summons, provided that where the reliefs sought are founded on allegations of fraud, forgery, or any other complex factual dispute, the court may, upon application by the plaintiff or on its own motion, order that the suit proceed by way of Writ of Summons.”

Second, until such an amendment is made, there is a need for Supreme Court to reconcile its jurisprudence. It should affirm that the Practice Directions create a legitimate presumption in favor of the Originating Summons but that this presumption is a rebuttable one. Where a defendant’s counter-affidavit demonstrates a “riotous” dispute of fact that goes to the heart of the case, the trial court must have the discretion to convert the originating process to a Writ of Summons (which itself is the law), ensuring that the 180-day timeline continues to run from the initial filing date. This approach honors both the constitutional timeline and the principles of fair hearing and substantive justice.

Objections in relation to the mode of commencement should also be limited to the trial court and once same is not raised at the trial court, a defendant should be restrained from raising it any other stage. The law is trite that there is just one recognizable way (and perhaps, period) to raise an issue of procedural jurisdiction and same is TIMEOUSLY. May we refer to AG Kwara State & Anor v Adeyemo & Ors (2016) LPELR – 41147 (SC); Tallen & Ors v Jang & Ors (2011) LPELR – 9212 (CA); Kalu v FRN & Ors (2012) LPELR – 9287 (CA). Particularly, in Olupo v Polaris Bank Ltd (2019) LPELR – 51071 (CA), the Court of Appeal held the following:

“There is no doubt that any condition for the filing of an action has a flavour of jurisdiction and can be raised at any time. There is also no doubt that matters of procedural steps such as this, fall under procedural jurisdiction which must be raised timeously in order to be heard.”

Similarly in Shaba & Ors v Kpotun & Ors (2021) LPELR – 54766 (CA) at 52-53 Paras B-A the Court of Appeal per Abiru J.C.A (now J.S.C) held as follows:

“…It is matters of substantive jurisdiction that can be raised at anytime and which if resolved against a party renders the entire proceedings a nullity, not matters of procedural irregularity. Matters of procedural irregularity must be raised by a party at the earliest opportunity upon being served with the Court process and before taking any further step in the matter, otherwise he will be deemed to have waived the irregularity and be foreclosed from raising it again.”

Conclusion
The mandatory imposition of the Originating Summons procedure for all pre-election matters creates an unsustainable tension within Nigerian law. It places litigants and judges in an impossible position, forcing square pegs of complex factual disputes into the round hole of a summary procedure. While the pursuit of expeditious justice is noble, it cannot be achieved by a procedural straitjacket that ignores the contentious nature of electoral disputes. The path to true efficiency lies not in rigid mandates, but in flexible rules that empower judges to choose the right tool for the case before them, ensuring that the race against time does not become a sacrifice of justice.

The current legal framework governing pre-election matters in Nigeria is internally inconsistent and self-defeating. The mandatory Originating Summons provision in the Federal High Court (Pre-Election) Practice Directions, 2022, while well-intentioned, creates a direct conflict with the substantive principles of justice as articulated by the Supreme Court. It forces the use of a summary procedure for disputes that are inherently and often explosively contentious, leading to judgments that are vulnerable to being overturned on appeal and, more importantly, to a denial of substantive justice. The solution is not to abandon the quest for efficiency but to reintroduce judicial discretion, which is the hallmark of a mature and responsive legal system.

Reference

1. Section 285 (5) provides for 21 days within which to file an election petition while subsection (6) mandates the tribunal to deliver judgment within 180 days of the filing of the petition. An appellate court (inclusive of the Supreme Court) has 60 days within which to deliver its judgment from the date of delivery of the judgment of the tribunal or Court of Appeal. Subsection (7) is very instructive in this regard. Subsection (9) provides that every pre-election matter shall be filed not later than 14 days from the date of the accrual of the cause of action and the judgment in such pre-election matter must be delivered within 180 days of its filings. The appellate court in a situation akin to election appeals have 60 days within which to determine the appeal while the notice of appeal itself must have been filed within 14 days from the delivery of the judgment being complained of. ↑
2. Eruaga & Anor v PDP & Anor (2021) LPELR – 54568 (CA); Ezenwajiaku v Umeoji & Ors (2009) LPELR – 4137 (CA) ↑
3. (2017) LPELR – 43748 (CA) at 16-18 Paras D-D, ↑
4. (2016) LPELR – 41451 (CA) at 35 Para A ↑
5. Ajibulu v. Ajayi (2013) LPELR-21860(SC) (PP. 24-25 PARAS. E), ↑
6. Regd Trustees, A.S.P & M.D.A. v John (2020) 17 NWLR (Pt. 1753) 189 ↑
7. Ashayi v A.P.C (2023) 18 NWLR (Pt. 1916) 297 ↑
8. (2012) LPELR-8575(CA) (Pp. 19 paras. B) ↑
9. (2019) 4 NWLR (Pt. 1661) 172 ↑
10. LPELR-58846(SC) (PP. 93-99 PARAS. D). ↑
11. (2023) LPELR – 59953 (SC) ↑
12. (2004) 10 NWLR (PT. 880) 107 AT 182 PARA H ↑
13. (2016) LPELR – 40013 (SC) 256 AT 304 ↑
14. (1992) LPELR – 3505 (SC) at 17-18 Paras C-A ↑
15. (2005) 19 NWLR (Pt. 259) 130 at 142-143 and 144 ↑
16. ↑
17. (1982) 3 NCLR 1 ↑
18. (2012) 11 NWLR (Pt. 1310) 76 at 104 Para H ↑
19. (2008) 4 NWLR (Pt. 1078) 465 at 511 ↑