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By. Henry Kelechukwu Eni-Otu, Esq.

The Supreme Court recently delivered judgment on the 6th day of February, 2023 in the appeal between APC V. Machina with same since generating a cacophony of controversy all over Nigeria, especially on our media space with some referring to the Judiciary as “shameless Judicial Bandits”. Much of these arising from a limited knowledge or appraisal of the matter considering the Laws in place.


On the 28 of May 2022, APC conducted primary election for the Yobe North Senatorial District. The Independent National Electoral Commission (INEC) monitored the election pursuant to Section 84(5) of the Electoral Act. Lawan was said not to have participated, since he was at the time still vying for the presidential ticket of the APC. Machina was however said to have won the said primary. APC was also said to have conducted another primary on 9th June, 2022 on the premise that the earlier primary was not conducted by the appropriate authority, hence, the reasoning behind the conduct of another primary. Machina didn’t participate in the latter election but Lawan did and won. Thereafter, APC forwarded Lawan’s name as its flag bearer for Yobe North Senatorial District. This action of the APC was visited with adverse claims and opposition from Machina who felt scorned. He instituted a suit at the Federal High Court, Damaturu, through an Originating Summons challenging the actions of the party. He also asked the Court to declare him APC’s flagbearer for the Yobe North Senatorial District. At the Court of first instance Machina won the case even in the face of allegation of fraud by both parties. APC and Senator Ahmed Lawan proceeded to the Court of Appeal to set aside the said decision, the Court of Appeal rather affirmed the decision of the Federal High Court.

Instructively, Senator Ahmed Lawan chose not to appeal the said decision of the Court of Appeal, However, the APC proceeded to the Supreme Court on appeal, maybe to see through the notion of party supremacy on nomination and sponsorship of candidates.

Before the Apex Court, one of the issues for determination raised by the APC was the question as to whether Machina’s suit was properly commenced at the Trial Court in Damaturu, considering that allegations of fraud were raised by Machina against the APC and vice-versa.

The Supreme Court in a judgement of 3 to 2 held thus:

Majority judgement

In the lead judgement, Justice Centus Nweze faulted the originating process used by Bashir Machina in commencing the suit at the Federal High Court Damaturu, that is the use of Originating Summons being that he had raised allegations of fraud. In clearer terms, the Apex Court held that the failure to call oral evidence to prove allegations of fraud, had robbed the Trial Court of jurisdiction. He added that Mr. Machina ought to have commenced his suit by a writ of summons going by the allegations of fraud levelled against the APC in transmitting Mr. Lawan’s name to INEC.

Consequently, the Apex Court set aside the decision of the Court of Appeal, Gombe Division, which affirmed the decision of the trial Court that declared Machina the Senatorial Candidate for Yobe North, being that same was reached without jurisdiction flowing from the wrong mode explored in commencing the suit at trial Court. There was a minority decision by two Justices of the Apex Court. However, being that the majority decision of a Court, in this case the Apex Court is the judgment of the Court which can only be reckoned with, there won’t be any need to proceed further on same.

My Opinion

It is imperative to state that in our jurisprudence as is the case in most common law States, the mode of commencing a matter is of utmost importance, hence goes to the root of adjudication. For jurisdiction has been held in a plethora of authorities to be the blood and life wire of any suit or action. A Court without jurisdiction does all actions in futility. Jurisdiction could be classified as substantive and procedural, whilst substantive cannot be waived, acquiesced or by consent of parties be conferred on a Court, procedural jurisdiction can be waived particularly when same is not raised timeously and at the earliest opportunity before the party takes any step in the proceeding.

It is trite law that an Originating Summons can only be used to commence a suit where they are no disputes as to facts, and where the suit seeks the interpretation of legislations, Laws, Acts, documents, Agreements, Deeds, etc.

It is equally the law that fraud cannot be proved through affidavit evidence, being that same inputs crime which must be proven beyond reasonable doubt, albeit it being a civil suit, hence the necessity to call oral evidence.

Machina’s suit was commenced by an Originating Summons and supported by an Affidavit wherein Machina alleged forgery and criminality against APC and Senator Ahmed Lawan. This process was challenged by the Defendants therein at the Trial Court, though same was dismissed by the Federal High Court while upholding the claims of Bashir Machina. The argument that by the Practice Direction of the Federal High Court for Pre-Election matters that a party commencing suit may explore the use of Originating Summons, ipso facto does not negate or dilute the efficacy of the principle on allegation of fraud or disputes as to facts and its implication in the need to call for oral evidence in the face of such allegation. This is in addition to the fact that the Supreme Court had earlier in the case of David Edevie v. Oborevwori Sheriff Francis Orohwedor, (Suit SC/CV/1132/2022), judgment delivered on 21st October, 2022 posited that the Practice Direction is analogous to a subsidiary legislation, and once in conflict with the provision of the Constitution or of a statute or of a substantive Rule of Court, it will not have a force of law.

In my view, the Trial Court having proceeded to determine the suit through the Originating Summons procedure in the face of the copious allegations of fraud was one entered and reached without jurisdiction, hence, no matter how beautifully decided same was conducted, it would be one in futility.

I equally understand the rationale for adopting Originating Summons in the commencement of election-related matters, which is simply the speed for which same guarantees to some extent, since there won’t be need to call oral evidence, which may sometimes occasion a clog to the expeditious hearing and determination of the suit, particularly to avoid the timeframe stipulated in Section 285(10) of the 1999 Constitution (as amended), which provides for the hearing and determination of such pre-election suits within 180 days of the institution of the suit before the Trial Court.

Suffice me to state that though the fears are genuine, I believe same are exaggerated since Election Petitions for post-election cases requires most times the calling of multiple witnesses with same heard and determined within the same period of 180 days as equally provided by Section 285(6) of the 1999 Constitution (as amended).

I need to reiterate that despite there been instances when the Trial Court could proceed to determine a case commenced via Originating Summons, in the face of disputes as to facts or inconsistencies of facts as the case maybe, through the use of documentary evidence in the suit. In the case of allegation of fraud or crime, same can only be proven beyond reasonable doubt and established by oral evidence, which Writ of Summons allows; and an Originating Summons may equally allow upon the order of Court for parties to exchange pleadings thereto.

It is my belief that the logic and jurisprudence behind same cannot be underestimated being that a finding of liability to a criminal allegation could have a far-reaching implication on the presumption of innocence guaranteed under the Constitution of the Federal Republic of Nigeria as well as the African Charter.

Whilst the judgment of the Federal High Court may be meritorious, the fact that the Defendants were not given the opportunity to test the veracity or efficacy of the allegations of fraud and vice-versa by the determination of same through the Originating Summons robs the Court of the requisite jurisdiction hence, without more, renders the judgment liable to be set-aside. The same fate befalls the Court of Appeal’s decision since the originating process is faulty.

I have read and listened to many articles and views on why they believe that the decision of the Supreme Court was one wholly on technicality rather than substance, I beg to disagree, as the Courts have in a plethora of cases stated that justice, discretion must pivot within the cloak of the law.See: Per ESO, J.S.C in Willoughby v. International Merchant Bank (Nig.) Ltd (1987) LPELR-3495(SC) (Pp. 22 paras. A)

“…the phrase interest of justice is not a carte blanche or licence for an unimpeded exercise of power, even against the Rules, in the guise of interest of justice. Justice, as a concept is not easy to define despite postulates by great Jurists from time immemorial even to Roscoe Pound who dwelt extensively on this concept. It is perhaps for the reason of the difficulty in an objective definition of justice that it has been considered safest to regard justice to be done once it is according to law; and law must necessarily include the procedure laid down for its attainment. To leave the attainment of justice at large, and ignore the rules is to establish a subjective course of action which could lead to judicial tyranny and the omnipotence of individual judges. Surely, such course will end in chaos and certainly not an attainment of interest of justice according to the law of the land.”

“Before putting the last dot to this judgment, I have deemed it apt to reiterate that justice, as cherishingly guaranteed under the 1999 Constitution and the law, cannot be administered by the Courts in vacuo. It must be administered in accordance with the said constitution and the Law.

As Oputa, JSC (of blessed memory) once postulated in a paper.

In the light of the foregoing, it must be acknowledged that the decision in Machina’s case follows a long list of cases where the Apex Court have taken similar decisions, though without much public coverage, hence maybe the avalanche of complaints for this particular case.

Just so recently, the Supreme Court wielded her no nonsense attitude when as it relates to mode of commencing a suit through the wrong process or mode. In its recent judgement in the PDP Gubernatorial primaries suit for Delta State, Edevbie v. PDP (2022) (as cited above), a pre-election matter, which was commenced by an Originating Summons whereas, in the affidavit in support, there were allegations of some fraudulent activities. The Supreme Court frowned at this, and proceeded to hold that where matters of fraud are being alleged, in as much as pre-election matters by the Practice directions of the Federal High Court may be commenced by Originating Summons, such must be commenced by way of a Writ of Summons. The Supreme Court proceeded to dismiss the suit on same grounds.

While I “agree” that the Supreme Court judgement may have wreaked violence on Section 84(5) of the Electoral Act, 2022, it is my respectful view that justice cannot and would never be pedestrian, justice must be accentuated within the precinct of the law, for the beauty of law and litigation should be certainty on pronouncement and its implication.

We cannot therefore blame the Apex Court for this decision, in as much as same follows the law, the argument on technicality would fail, for what the Apex Court have done is to reiterate the established position of our laws on allegation of crime.

Conclusively, I wish to state that our Courts are not open to emotions and bias but must be guided by the facts and laws brought forth properly for their adjudication, hence no matter the public hullabaloo, the need to get acquainted with the facts and issues canvassed before the Courts becomes imperative before attacking the integrity and sanctity of the Courts.

Henry Kelechukwu Eni-Otu, Esq is a Legal Practitioner and Lead Partner at Law Corridor, Abuja.

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