DAUDA LAWAL v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2019)LCN/13248(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 14th day of May, 2019
CA/A/306/2019
RATIO
ABUSE OF COURT PROCESS: DEFINTION
Now, in resolving the Preliminary Objection raised, seeking for the striking out of the appeal for being an abuse of Court process, I must first define what constitutes an abuse of Court process.
In the Supreme Court case of CHIEF VICTOR UMEH & ANOR VS. PROFESSOR MAURICE IWU & ORS (2008) LPELR – 3363 (SC) it was held:
“Generally, abuse of process contemplates multiplicity of suits between the same parties in regard to the same subject matter and on the same issues. To institute an action during the pendency of another suit claiming the same relief is an abuse of Court process, and the only course open to the Court is to put an end to the suit. It does not matter whether the suit is on appeal, the subsequent action would constitute an abuse of process. The attitude of the Courts is to strike out the suit filed in abuse of process. Abuse of Court process therefore simply, in practical sense, denotes a situation where a party has instituted a multiplicity of suits against the same opponent in respect of the same subject matter and on the same issues.PER MOHAMMED BABA IDRIS, J.C.A.
ABUSE OF COURT PROCESS: NECESSARY ELEMENTS TO SUSTAIN THE CLAIM
Therefore, to sustain a charge of abuse of process, there must co-exist inter alias (a) a multiplicity of suits; (b) between the same opponents; (c) on the same subject matter; and (d) on the same issues. All these pre-conditions are mutually inclusive as they are conjunctive. In the instant case, the parties, the subject matters and the issues were not the same. OGOEJEOFO V. OGOEJEOFO (2006) 3 NWLR (PT.966) 205; OKAFOR V. A.-G., ANAMBRA STATE (1991) 6 NWLR (PT.200) 659; ARUBO V AIYELERU (1993) 3 NWLR (PT. 280) 126; OKORODUDU V. OKOROMADU (1977) 3 SC 21; SARAKI V. KOTOYE (1992) 9 NWLR (PT. 264) 156.
Also, in the case of VAB PETROLEUM INC. VS. MOMAH (2013) LPELR 19770 (SC) it was held Per Muhammed JSC that:
“The trite position of the law on abuse of a Court process is that it happens in regard to multiple actions between the same parties, on the same subject matter, when a party (such as the appellant in this appeal) improperly uses judicial process to the irritation, of annoyance and harassment of his opponent (the respondent herein) not only in respect of the same subject matter but also in respect of the same issues in the other action or actions.” See OKAFOR VS. A – G ANAMBRA STATE (1991) 6 NWLR (PT.200) 659 AT 681; SARAKI VS. KOTOYE (1992) 9 NWLR (PT. 264) 156; IKINE VS. EDJERODE (2001) 18 NWLR (PT. 745) 446.PER MOHAMMED BABA IDRIS, J.C.A.
ABUSE OF COURT PROCESS: NATURE
Simply put, abuse of Court process is an issue of facts and can arise in diverse ways. However, it is usually associated with filing of multiple actions on the same subject matter, between the same parties and their privies or using judicial process to annoy or irritate the other party or even the Court. It is not the law that the filing of multiple suits between the same parties will automatically be referred to as an abuse of Court process. It only becomes an abuse of Court process when the reliefs sought are so similar that if granted by the Courts, they will have the same effect. See UBA PLC VS. DANA MOTORS LTD (2018) LPELR 44101.PER MOHAMMED BABA IDRIS, J.C.A.
JUSTICE
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
DAUDA LAWALAppellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. ALH. LAWAL M. LIMAN
3. ALH. MUKTAR SHEHU IDRIS
4. HON. IKIRA ALIYU BILBIS
5. HON. JIJJANI YAHAYA KAURA
6. HON. SANUSI GARBA RIKIJIRespondent(s)
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By a Notice of Appeal dated and filed on the 19th March, 2019, the Appellant sought to appeal against the decision of the Federal High Court, Abuja Judicial Division, in Suit No. FCT/ABJ/CS/1412/2018 delivered on the 6th of day of March, 2019 by Honourable Justice A. R. Mohammed wherein the trial Judge dismissed the Plaintiff’s (now Appellant) suit in favour of the 2nd – 6th Defendants (now Respondents).
The facts of the case leading to this Appeal as adduced from the pleadings and evidence tendered at the trial Court are to the effect that the Appellant by Originating Summons instituted an action against the 1st Respondent (then the sole Defendant) seeking for the determination of the following questions:
1. Whether by virtue of the provisions of Section 31(1), 31 (3) and 34 of the Electoral Act, 2010 (as amended), the Respondent has the power or vires to refuse to publish the name of the Plaintiff whose name has been submitted to the 1st Defendant by the All Progressive Congress as the candidate of the All Progressive Congress for the gubernatorial election of Zamfara
1
State for the 2019 general election;
2. Whether by virtue of the provisions of Section 31(1) of the Electoral Act, 2010 (as amended) the decision of the 1st Defendant to refuse to publish the name of the Plaintiff whose name has been submitted to the 1st Defendant by the All Progressive Congress as the candidate of the All Progressive Congress for the gubernatorial election of Zamfara State for the 2019 general election is NOT unlawful, null, void and of no effect whatever;
3. Whether in view of the Provisions of Section 87 of the Electoral Act, 2010 (as amended) and having regards to the provisions of Article 20 of the Constitution of the All Progressive Congress (2014 as amended) and the All Progressive Congress Guidelines for Nomination of Candidates for 2019 General Election, it is lawful for the 1st Defendant to fail to recognize and publish the name of the Plaintiff forwarded to the 15t Defendant by the All Progressive Congress as the Governorship candidate of the All Progressive Congress for Zamfara State for the forthcoming 2019 general election.
Consequently, the Appellant sought for the following reliefs:
a) A Declaration that
2
the refusal by the 1st Defendant to publish on its website and/or the State of the Plaintiff, the names and particulars of the Plaintiff as the Governorship candidate of the All Progressive Congress (APC) for Zamfara State in the 2019 general election as required by the Electoral Act 2010 (as amended) is unlawful, null, void and of no effect whatsoever.
b) A Declaration that the nomination and/or submission by the All Progressive Congress, of the Plaintiff’s name as the Governorship candidate of the All Progressive Congress (APC) to contest and participate in the Governorship election of Zamfara State in the 2019 General Election is valid and in compliance with the provisions of the Electoral Act, 2010 (as amended) and all other relevant laws.
c) An Order setting aside the decision of the 1st Defendant which refused to publish on the 9th day of November, 2018 or any other date, in its website and/or in the Constituency of the Plaintiff, the names and particulars of the Plaintiff as the Governorship candidate for the All Progressive Congress (APC) for Zamfara State in the 2019 General Elections.
d) An Order directing the 1st Defendant to
3
publish the names and particulars of the Plaintiff in its website and the constituency of the Plaintiff and to reflect in all its relevant records the Plaintiff as the Governorship candidate of the All Progressive Congress in Zamfara State for the 2019 General Election.
e) An Order of perpetual injunction restraining the 1st Defendant by itself or through its Officers, Servant, Privies, Agents or any other person(s), Agencies or individuals howsoever from doing anything that will prejudice the position of the Plaintiff as the Governorship candidate of the All Progressive Congress (APC) in Zamfara State in the 2019 General Election.
It was the Appellant’s case at the trial Court that he is a card carrying member of the All Progressive Congress and he purchased and obtained the Expression of interest and nomination forms after he signified his interest to contest for the position of Governor of Zamfara State in the 2019 general elections. He stated that the party resolved to adopt indirect or consensus option in conducting its primaries for the Governorship, National Assembly and State Houses of Assembly seats for Zamfara State and the primary
4
elections was scheduled to take place on the 7th of October, 2018. At the said primary election, based on the consensus mode of primary elections adopted, the Appellant claimed he was adopted as the consensus candidate of the All Progressive Congress for the 2019 Governorship election for Zamfara State and he was issued the FORM INEC 001 for nomination by the All Progressive Congress as its candidate. His party All Progressive Congress, subsequently forwarded his name and the names of other candidates for the legislative seats who emerged winners in the consensus primary election in Zamfara state to the 1st Respondent. However, the 1st Respondent refused to acknowledge receipt of the names submitted to it.
To his surprise, the 1st Respondent on the 9th of November, 2018 finally published the names of the nominated candidates for the 2019 General Elections on its websites and he discovered that his name alongside with the other names submitted were clearly omitted. He instituted the action against the 1st Respondent so as to compel it to publish his name as the candidate of the All Progressive Congress in the 2019 Governorship election.
5
By a motion on notice dated 31/01/2019 and filed 1/02/2019, the 2nd – 6th Respondents sought to be joined as defendants in the suit and it was granted.
The 2nd – 6th Respondents filed a preliminary objection, seeking for an order to dismiss the suit on the grounds that it was statute barred, it was an abuse of Court process as the Federal High Court in Suit No. FHC/ABJ/CS/1279 between All Progressive Congress V INEC & 5 ORS and Suit No. ZMS/GS/52/2018 between Sanusi Liman Dan Alhaji & 37 Ors V APC & 144 Ors had exhaustively heard and determined the matter, the suit was grossly incompetent and grossly defective and also on the grounds of res judicata.
The 2nd – 6th Respondents argued that the matter was filed out of the time stipulated by Section 285 (9) of the 1999 Constitution (4th Alteration) for pre-election matters, there were judgments of competent Courts in the aforementioned suits whose subject matter is the same as the instant case which have not been set aside. In their affidavit in support of their preliminary objection, it was deposed that the 2nd – 6th Respondents were registered members of the All Progressive Congress that participated and
6
emerged winners in the Governorship, National and State Houses of Assembly Primary Elections in Zamfara. They further stated that the APC adopted the direct primaries and not the indirect or consensus mode as stated by the Appellant for the nomination of its candidates to participate in the 2019 General elections. Also, that the Appellant participated in the direct primaries that took place on the 3rd and 7th of October, 2018 but did not emerge winner of the election and it was indeed the 3rd Respondent that emerged winner.
However, the 1st Respondent wrote to All Progressive Congress, stating that it would not accept the candidates for its party submitted, having not submitted the names early and within the time stipulated by law. Aggrieved by this, the 2nd – 6th Respondents filed an action before the Zamfara State High Court, challenging the decision of the 1st Respondent and also the All Progressive Congress from jettisoning, abandoning and refusing to recognize the list of successful winners of the Direct primaries. The suit was heard and judgment was delivered in favour of the 2nd-6th Respondents.
Also, an action was instituted before the
7
Federal High Court, Abuja Division with Suit No- FHC/AB3/CS/1279 between APC V INEC & 5 ORS on the same issue as that instituted in Suit No- ZMS/GS/52/2018 between Sanusi Liman Dan Alhaji & 37 Ors V APC & 144 Ors and the matter was dismissed as the plaintiff therein failed to prove her case. The 2nd 6th Respondents stated that the case of the Appellant is the same as those suits already litigated upon. On these grounds, this Court was urged to dismiss the suit for being an abuse of Court process.
The Appellant then filed a Reply on points of law to the that the Counter affidavit to the originating summons, stating depositions therein were bare and lame, self-contradictory.
Furthermore, the 2nd -6th Respondents filed a Counter claim and they raised the following questions for determination amongst others:
1. In view of the provisions of Section 223 of the Constitution of the Federal Republic of Nigeria,1999 (as amended);Section 31(1)(3) and 87 of the Electoral Act 2010 (as amended); Article 13.7 (ii), 14.1 (vi), 20 (iii) and iv (v) of the Constitution of the All Progressive Congress (as amended) and paragraphs 20 (b), (c) and
8
(d) of the All Progressive Guidelines, 2019, whether the 1st Defendant is not bound to recognise, accept the list of candidates that emerged winners in the Governorship, National Assembly and State House of Assembly Primary Election of the All Progressive Congress in Zamfara State.
2. Having regard to the provisions of Section 223 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) Section 31 (1), (3), 38, 85, 86 and 87 of the Electoral Act 2010 (as amended) and the fact that primary elections of the All Progressive Congress for Governorship, National Assembly and State House of Assembly in Zamfara State were duly held under the monitoring and supervision of the 1st Defendant and security agencies on or before the lapse of Sunday, 7th October, 2018, the deadline for political party’s primaries, whether the 1st Defendant can refuse or shut out the All Progressive Congress from presenting or forwarding the list of candidates that emerged winners in the Governorship, National Assemble and State House of Assembly primary Election of Zamfara State. (See pages 563 – 565 for the remaining 4 questions and 5 reliefs sought by the counter-claimant).
9
In the affidavit in support of their counter claim, the 2nd- 6th Respondent stated that it was agreed that the All Progressive Congress would adopt the Direct primary mode of election. That they emerged winner of the said direct primary election and the Electoral Committee for Zamfara State and the National working committee of the political party refused to submit their names. Also, that the All Progressive Congress if not compelled, would submit the names of unsuccessful aspirants to the 1st Defendant.
The Appellant filed a counter affidavit to the Counter-claim, seeking to deny majority of the deposition of the 2nd – 6th Respondents depositions therein.
On the 6th of March, 2019, the trial judge, Justice A. R. Mohammed delivered its judgment where he held that the case of the Appellant was clearly an abuse of Court process as same had been litigated on and decided in Suit No: ZMS/SC/52/2018 between SANUSI LIMAN DAN-ALHAJI & 37 ORS V ALL PROGRESSIVE CONGRESS & 143 ORS and Suit No: FHC/ABJ/CS/1279/2018 between ALL PROGRESSIVE CONGRESS V INEC & 5 ORS, thus, the suit was struck out. The counter claim filed by the 2nd -6th
10
Respondents was also dismissed for being an abuse of Court process as they had admitted in their Notice of Preliminary Objection that the matter had already been litigated upon by Courts of competent jurisdiction.
The Appellant being dissatisfied with the decision of the trial Court filed an appeal before the Court of Appeal. In accordance to the rules of Court, parties filed and adopted their respective briefs of argument at the hearing of the appeal.
The Appellant from the three (3) grounds of appeal distilled two (2) issues for the determination of this appeal outlined below:
i. Whether the trial Court was right when it dismissed the Appellant suit without considering the merit of the case on the ground of abuse of Court process. (From grounds 1 and 2)
ii, Whether in view of the failure of the trial Court to evaluate the evidence placed it, this Honourable Court can exercise its powers under Section 15 of the Court of Appeal Act to determine the suit on the merit and grant the Reliefs sought by the Appellant. (From ground 3)
With regard to issue one, learned counsel for the Appellant argued that the law is well settled that where
11
there are multiplicity of suits between the same parties in regards to the same subject matter and on the same issues, or put in another way, when a party institute an action during the pendency of another suit claiming the same reliefs, it is an abuse of Court process and the Court faced with such situation is at liberty to end the suit. However, that from the records of appeal, it can be gleaned from the questions formulated for determination and the Reliefs sought, the Appellant is primary only seeking for the determination of whether by virtue of provisions of Sections 31 (1) and 34 of the Electoral Act, 2010 (as amended), the 1st Respondent (INEC) has power or vires to refuse to publish the name of the Appellant whose name was submitted to the 1st Respondent by the All Progressive Congress as the candidate of the All Progressive Congress for the gubernatorial election of Zamfara State for the 2019 general election. That the All Progressive forwarded and or nominated the name Appellant as the Governorship candidate of the Political Party, but on the 9th day November, 2018 when the 1st Respondent (INEC) in compliance with the requirement of Section 34 of the Electoral Act 2010 (as amended)
12
published the names of the candidates standing nominated for the Governorship seats of the 2019 election, the Appellant’s name was conspicuously missing as the All Progressive Congress candidate for Zamfara State from the 1st Respondent’s publication of nominated Candidates.
The Appellant contended that the 1st Respondent (INEC) herein at the trial Court admitted by its Affidavit evidence that the Political Party the Appellant (All Progressive Congress) actually submitted the name of the Appellant as the Governorship candidate for Zamfara State in the 2019 general elections. See page 4 of the additional Records of Appeal where the 1st Respondent (INEC) averred thus:
“I know as a fact that contrary to paragraphs 16, 17, 18 and 19 of the affidavit in support of the of the Originating Summons and having regards to the failure of the Plaintiff’s political party to conduct primaries, the lists (forms CF 002) and the affidavit in support of personal particulars (Form CF 001) of the Plaintiff and other candidates for Zamfara State submitted by the All Progressive Congress (APC) to the Defendant on the 19th October, 2018 and
13
2nd November, 2018 were rejected.”
That the averments above further amplify the contention of the Appellant as per the affidavit in support of the Appellant’s Originating Summons filed before the trial Court, which reads:
15. That on the said 7th day of October, 2018 based on the consensus mode of Primary elections adopted for the Governorship, National Assembly and State Houses of Assembly seat from Zamfara State, he was adopted as the consensus Candidate of the All Progressive Congress for the 2019 Governorship election for Zamfara State. The Consensus Agreement is hereby attached and marked as Exhibit H.
16. That the All Progressive Congress Party consequently issued him with Form INEC 001 for Nomination to be filled as its Governorship candidate for Zamfara State for the 2019 General Elections which he filled and deposed to before Commissioner for Oath and submitted to the All Progressive Congress Party for onwards submission to the Defendant. The INEC Form CF001 and other accompanying INEC Form issued and deposed to by the Plaintiff is hereto attached and marked as Exhibit I.
17. That the All Progressive Party subsequently
14
forwarded his names and the names of other candidates who emerged in the consensus primary election in Zamfara State to the Defendant.
18. That the Respondent collected the nomination of the names of the Plaintiff from the All Progressive Congress together with all the relevant INEC Forms CF001 attached hereto as Exhibit I but refused to endorse acknowledgement receipt of the same from the All Progressive Congress.
19. That surprisingly despite the fact that his names and the names of other candidates who emerged in the consensus primary election conducted in Zamfara State for the 2019 general election, was submitted to the Defendant by the All Progressive Congress, but on the 9th November, 2018 the Defendant, who finally displayed the names of the nominated candidates for the 2019 General Elections on its websites and in the constituencies of the candidates clearly omitted his name as the candidate of the All Progressive Congress as well as the names of other candidates for other elective offices from Zamfara State.”
The Appellant further argued that despite the strength of the above averments the trial Court just simply and blushingly in few
15
sentences held that the Appellant’s suit was an abuse of the process of the Court. That it is never the law that once another suit is filed on the same or similar subject matter of dispute then, the subsequent suit will then amount to abuse of Court process. He relied on N.D.I.C V. U.B.N. PLC (2015) 12 NWLR (PT. 1473) 246 where per Augie JCA, the Court held:
“It is not the law that once a party files another suits before another Court on the same subject matter, there is an abuse of Court process. An act can give rise to different suits. A subject matter may very well give rise to different rights. In other words, different suits can emanate from the same subject matter but with different rights and reliefs.”
The Appellant contended that what was clear and beyond dispute is that from the entirety of the whole processes filed before the trial Court including specifically all processes filed by the 2nd 6th Respondents, they only made reference to the said Suit No. ZMS/CS/52/2018 between SANUSI LIMAN DAN ALHAJI & 37 ORS VS. ALL PROGRESSIVE CONGRESS (APC) & 143 ORS and contended that the parties and the subject matter of the suit is one
16
and same with the instant suit, without supplying the Originating processes or any relevant processes filed in Suit No. ZMS/CS/52/2018 between SANUSI LIMAN DAN ALHAJI & 37 ORS V ALL PROGRESSIVE CONGRESS (APC) & 143 ORS to enable the trial Court actually determine whether the suit, the parties and the subject matter is one and the same.
The Appellant additionally argued that the trial Court only stated and relied on the averments of the 2nd – 6th Respondents which averment was not supported by documentary evidence. That none of the parties attached any process that would have actually supplied the true position of Suit No. ZMS/CS/52/2018 between SANSUSI LIMAN DAN ALHAJI & 37 ORS V ALL PROGRESSIVE CONGRESS (APC) & 143 ORS to warrant the trial Court determine the allegations of abuse of Court process. The Appellant submitted that the law is well settled that the Court is expected to restrict itself to the case presented before it by parties before the Court. Relying on TONY ANTHONY (NIG) LTD. VS. N.D.I.C (2011) ALL FWLR (Pt. 598) 909.
The Appellant also contended that there is no hard and fast rule in determining the absence or
17
presence of judicial process in any action because of its elastic nature. That a Court is enjoined by law to examine each case predicated on its facts and circumstances in order to ascertain if it is an abuse of Court process or not. Therefore, the factual antecedents of each case have to be married with the negative elements of abuse of Court process. Reference was made to IDRIS VS. AGUMAGU (2015) 13 NWLR (Pt. 1477) 441.
In concluding his argument on issue one the Appellant contended that his questions for determination presented to the trial Court borders on the refusal of the 1st Respondent (INEC) to publish in its records and recognize the Appellant as the Governorship candidate for Zamfara State in the 2019 general election. That the trial Court set out a different assumed case, and was considering the issue of conduct of primary election which was the issue determined in Suit No. ZMS/CS/52/2018 between SANSUSI LIMAN DAN ALHAJI & 37 ORS V ALL PROGRESSIVE CONGRESS (APC) & 143 ORS and which is clearly in contradiction with the case presented by the Appellant before the trial Court. They urged the Court to hold that the trial Court was wrong in
18
that regard.
On issue two, the Appellant argued that the Court of Appeal in accordance with the provisions of Section 15 of the Court of Appeal quoted above has the power to take and consider a matter and grant the reliefs sought before the trial Court. That this position of law is well settled and affirmed in plethora of authorities. That in the case of EZEIGWE VS. NWAWULU (2010) 4NWLR (Pt 1183) PG 159 the Supreme Court held that the Court of Appeal can exercise the powers vested under Section 15 upon the satisfaction of the following conditions:
a. That the High Court or trial Court had the legal power to adjudicate in the matter before the Appellate Court entertained it.
b. That the real issue raised by the claim of the Appellant at the High Court or trial Court must be capable of being distilled from the grounds of appeal.
c. That all necessary materials must be available to the Court of appeal
d. That the need for expeditious disposal of the case to meet the ends of Justice must be apparent on the face of the materials presented; and
e. That the in Justice or hardship that will follow if the case is remitted to the Court below
19
must be clearly manifest.
That the instant case clearly meets the above stated conditions for this honourable Court to invoke the powers under Section 15 of the Court of Appeal to hear and determine the instant suit which the trial Court failed to determine on the merit.
The Appellant also argued that by virtue of Section 31(1) of the Electoral Act, 2010 (as amended), the Independent National Electoral Commission (the 1st Respondent) is not entitled in law, to reject the nomination of a candidate or disqualify a candidate sponsored by a Political Party. That Section 31(1) of the Electoral Act, 2010 (as amended) provides thus:
“Every Political party shall not later than 60 days before the date appointed for a general election under the provisions of this Act, submit to the Commission, in the prescribed forms, the list of the candidates the party proposes to sponsor at the elections, provided that the Commission shall not reject or disqualify candidate(s) for any reason whatsoever.”
The Appellant argued that the above section is clear unambiguous and devoid of any aid of interpretation as to the powers of a political party to nominate a
20
candidate of its choice for an election and the incumbent duty imposed on the Electoral body to accept and not to reject the nomination of that political party so submitted to it. That by JEV VS. IYORTYOM (2014) 14 NWLR (PT. 1428) 575 decided by the Supreme Court on the needlessness of calling for any aid or cannon of interpretation where a provision of a Statute is clear and unambiguous.
The Appellant urged the Court to invoke the power of Section 15 of the Court of Appeal Act and construe the provisions of Section 31 (1) of the Electoral Act 2010 (as amended) according to the literal and ordinary meaning of the words employed by the legislature and hold that the All Progressive Congress nominated the Appellant to the 1st Respondent as its Governorship candidate and the 1st Respondent does not have the power to refuse to publish the name of the name of the Appellant.
The 2nd-6th Respondents filed a preliminary objection, praying for an order striking out/dismissing the appeal for constituting an abuse of Court process. The said motion is dated the 22nd of April, 2019. Attached in support is an eleven (11) paragraph affidavit wherein it was deposed
21
that the 2nd – 6th Respondents participated in the primary election conducted by the All Progressive Congress in Zamfara State for the nomination of Governorship, National and State Assembly Election on the 3rd and 7th of October, 2018 before the expiration of the deadline for submission of list of candidates to the 1st Respondent (INEC).
That the 2nd – 6th Respondents made several attempts to submit the List of Candidates that emerged winner from the primary election to the 1st Respondent but it refused to accept same for publication.
As a result of the refusal, some of the winners of the said primaries instituted an action at the High Court of Zamfara State with Suit No. ZMS/GS/52/2018 between Sanusi Liman Dan Alhaji & 37 Ors v APC & 144 Ors. In the said suit, one of the reliefs sought was for the 1st Respondent to accept and publish the List of candidates that emerged from the primary election. However, while this matter was pending, the All Progressive Congress instituted another action before the Federal High Court, Abuja division with Suit No. FHC/ABJ/CS/1279 between APC V INEC & 5 ORS on the same subject matter. The matter was
22
dismissed. Dissatisfied with the judgment of the Federal High Court, an appeal with Appeal No: CA/A/95/2019 was filed and same was dismissed for being an abuse of Court’s process.
It was during the pendency of the said appeal that the Appellant in this instant appeal instituted the suit with Suit No. FHC/ABJ/CS/1412/2018 before Justice A.R. Mohammed. Thus, based on the foregoing, this instant appeal is an abuse of Court process. The certified true copy of the judgments of the suits named therein were attached to the affidavit as Exhibits.
The 2nd – 6th Respondents filed their Brief of argument dated the 21st of April, 2019 settled by Okechukwu Edeze Esq. They formulated two issues for determination which are:
1. Whether the trial Court was right in finding that the Appellant’s suit was an abuse of Court process? (Distilled from Ground One and Two of the Notice of Appeal)
2. Whether in the circumstances, this Honourable Court can exercise its power under Section 15 of the Court of Appeal Act to determine the case on its merit? (Distilled from Ground 3 of the Notice of Appeal)
On issue one, the 2nd – 6th Respondents’ counsel has argued
23
that the trial Court was indeed right in finding that the suit was an abuse of Court process. Also, it is the contention of the 2nd – 6th Respondents that as at the time the Appellant instituted the action giving rise to this appeal, there were cases pending at the Zamfara State High Court and the Federal High Court Abuja bordering on the same or similar subject matter as the issue of the refusal of the 1st Respondent to publish the names of those that emerged the winners of the primary election conducted by All Progressive Congress in Zamfara State, including that of the office of Governor of Zamfara State was one of the reliefs that were sought from Zamfara State High Court in Suit No. ZMS/GS/52/2018 between Sanusi Liman Dan Alhaji & 37 ors V APC & 144 Ors.
In response to the argument of Appellant counsel that the 2nd – 6th Respondents failed to attach the originating processes the Suit: ZMS/GS/52/2018 and Suit No.FHC/ABJ/CS/1279/2018 and thus, there was nothing before the trial judge for him to arrive at the decision made, the 2nd 6th Respondents have referred to paragraphs of their affidavit in support of their preliminary objection at the
24
trial Court wherein it was stated that the CTC of the certificate of judgment in Suit No. ZMS/GS/52/2018 and the judgment delivered in Suit No. FHC/ABJ/CS/1279/2018 were attached as exhibits.
Furthermore, the 2nd – 6th Respondents have argued that the Appellant did not deny the depositions relating to the abuse of Court processes contained in their affidavit in support of preliminary objection but just merely re-emphasized that the Plaintiff was not a party to both suits referred to. This assertion is of no moment as it is the law that once a party through whom a person derives benefits/interest is sued, the person who derives such benefit from the party sued cannot say that he was not sued or that his interest is not affected by the suit. Thus, the Appellant cannot deny not being a party to the said suit. This is because a privy cannot deny being a party to a suit when his principal is a party. In the cases of AGBOGUNLERI VS. DEPO & ORS (2008) LPELR – 243 (SC); ELEBURUIKE VS. TAWA (2010) LPELR – 4098 PP. 51 – 52 PARAS F – C, a privy was defined as that person whose title is derived from and who claims through a
25
party.
It was also stated that the Appeal case with Appeal No. CA/A/95/2019 between All Progressive Congress V INEC & Ors was also held to be an abuse of Court process.
This Court was urged to dismiss the appeal and affirm the judgment of the lower Court.
On issue two, it was submitted by the 2nd-6th Respondents that the instant case is not one which this Court can exercise its powers under Section 15 of the Court of Appeal Act, This is because the conditions listed by the Supreme Court in the case of EZEIGWE VS. NWAWULU (2010) 4 NWLR PART 1183 PAGE 159 AT 203 204 relied on by the Appellant did not exist in the instant case. One of the conditions for this Court to exercise its powers under Section 15 of the Court of Appeal Act is that the real issue raised by the claim of the Appellant at the trial Court must be capable of being distilled from the grounds of appeal.
However, if this Court is minded of exercising its powers under Section 15 of the Court of Appeal Act, the 2nd 6th Respondents have argued that the Appellant’s case was statute barred having not been filed within 14 days from the date of accrual of
26
action as required by Section 285 (9) of the 1999 constitution of the Federal Republic of Nigeria and also, the plea of res judicata can successfully be raised.
It was also argued that a lot of depositions made by the 2nd- 6th Respondents particularly in their counter affidavit to the originating summons relating to fact that the Appellant never emerged winner of the primaries were left uncontroverted by the Appellant.
Finally, it was submitted that the provisions of Section 285 (13) of the 1999 constitution (4th Alteration) provides that an election tribunal or court shall not declare any person a winner at an election in which such a person has not fully participated in all stages of the election. It was argued that the Appellant did not participate in all the stages of the election including the primary election as well as the general elections. This Honourable court was urged to dismiss the appeal.
The Appellant filed a Reply Brief dated the 24th of April, 2019 and settled by Hassan M. Liman, SAN. It was submitted that in the preliminary objection filed by the 2nd- 6th Respondents at the trial court, it was argued that in the light of Suit
27
No. FHC/ABJ/CS/1279 between APC V INEC & 5 ORS and suit No. ZMS/GS/52/2018 between Sanusi Liman Dan Alhaji & 37 Ors V APC & 744 Ors, the instant case amounted to an abuse of Court process. This argument made by the learned counsel for the 2nd – 6th Respondents according to the Appellant’s counsel is erroneous and misleading as it was not borne out of the judgment of the trial Court contained on pages 1121 – 1124 of the Records of appeal.
Also, the Appellant’s counsel has argued that it is his contention that the 2nd – 6th Respondents did not attach the originating processes of Suit No- FHC/ABJ/CS/1279 between APC V INEC & 5 ORS and Suit No. ZMS/GS/52/2018 between Sanusi Liman Dan Alhaji & 37 Ors v APC & 144 Ors, and not that the certified true copies of the judgments in the suit were not attached to enable the trial arrive at a just decision. It is the Appellant’s belief that it is only through the originating processes that a Court can thoroughly understand a case.
Also, on the issue of whether the 2nd – 6th Respondents can validly raise the issue of statute barred in their brief, it was argued that having not raised the
28
issue in the Appellant’s Notice of Appeal, the 2nd – 6th Respondents cannot raise and argue same in their Respondent’s brief. Furthermore, it was argued that it is trite law that a party can complain about the decision of a trial Court only by way of an appeal, cross appeal or Respondent’s notice of contention. Reference was made to ABIOLA & SONS CO. LTD VS. 7UP BOTTLING COMPANY LIMITED (2012) 15 NWLR PART 1322 PAGE 197 – 199.
Lastly, on the issue of whether the Appellant can be declared winner of the Governorship election in Zamfara State held on 9th March, 2019, it was held that the provisions of Section 285 (13) of the 1999 Constitution (4th Alteration) was misconstrued by the 2nd-6th Respondents. It was submitted that the said section does not apply to a situation where at the time of the election, the person seeking to be declared as the winner of the election has a pending pre-election matter in court which pre-dates the actual holding of the election. AMAECHI VS. INEC (2008) 5 NWLR PART 1080 PAGE 227.
Before delving into the issues raised in the briefs of argument of respective counsel for the Appellant and 2nd-6th Respondents,
29
it is pertinent to first consider the Preliminary objection filed by the 2nd – 6th Respondents, praying for an order striking out/dismissing the appeal for constituting an abuse of process which is dated the 22nd of April, 2019.
Now, in resolving the Preliminary Objection raised, seeking for the striking out of the appeal for being an abuse of Court process, I must first define what constitutes an abuse of Court process.
In the Supreme Court case of CHIEF VICTOR UMEH & ANOR VS. PROFESSOR MAURICE IWU & ORS (2008) LPELR – 3363 (SC) it was held:
“Generally, abuse of process contemplates multiplicity of suits between the same parties in regard to the same subject matter and on the same issues. To institute an action during the pendency of another suit claiming the same relief is an abuse of Court process, and the only course open to the Court is to put an end to the suit. It does not matter whether the suit is on appeal, the subsequent action would constitute an abuse of process. The attitude of the Courts is to strike out the suit filed in abuse of process. Abuse of Court process therefore simply, in practical sense, denotes a situation
30
where a party has instituted a multiplicity of suits against the same opponent in respect of the same subject matter and on the same issues. This manner of using Court process which is obviously lacking in bona fide leads to the irritation and annoyance of the other party and thus impedes due administration of Justice. Therefore, to sustain a charge of abuse of process, there must co-exist inter alias (a) a multiplicity of suits; (b) between the same opponents; (c) on the same subject matter; and (d) on the same issues. All these pre-conditions are mutually inclusive as they are conjunctive. In the instant case, the parties, the subject matters and the issues were not the same. OGOEJEOFO V. OGOEJEOFO (2006) 3 NWLR (PT.966) 205; OKAFOR V. A.-G., ANAMBRA STATE (1991) 6 NWLR (PT.200) 659; ARUBO V AIYELERU (1993) 3 NWLR (PT. 280) 126; OKORODUDU V. OKOROMADU (1977) 3 SC 21; SARAKI V. KOTOYE (1992) 9 NWLR (PT. 264) 156.
Also, in the case of VAB PETROLEUM INC. VS. MOMAH (2013) LPELR 19770 (SC) it was held Per Muhammed JSC that:
“The trite position of the law on abuse of a Court process is that it happens in regard to multiple actions between the same
31
parties, on the same subject matter, when a party (such as the appellant in this appeal) improperly uses judicial process to the irritation, of annoyance and harassment of his opponent (the respondent herein) not only in respect of the same subject matter but also in respect of the same issues in the other action or actions.” See OKAFOR VS. A – G ANAMBRA STATE (1991) 6 NWLR (PT.200) 659 AT 681; SARAKI VS. KOTOYE (1992) 9 NWLR (PT. 264) 156; IKINE VS. EDJERODE (2001) 18 NWLR (PT. 745) 446.
Simply put, abuse of Court process is an issue of facts and can arise in diverse ways. However, it is usually associated with filing of multiple actions on the same subject matter, between the same parties and their privies or using judicial process to annoy or irritate the other party or even the Court. It is not the law that the filing of multiple suits between the same parties will automatically be referred to as an abuse of Court process. It only becomes an abuse of Court process when the reliefs sought are so similar that if granted by the Courts, they will have the same effect. See UBA PLC VS. DANA MOTORS LTD (2018) LPELR 44101.
It is the argument
32
of learned counsel to the 2nd- 6th Respondents that the case by the Appellant is similar in subject matter to the cases decided in Suit No. FHC/ABJ/CS/1279 between APC V INEC & 5 ORS and Suit No. ZMS/GS/52/2018 between Sanusi Liman Dan Alhaji & 37 Ors V APC & 144 Ors. The Certified True Copy of the Judgment in both suits have been attached and I have read through it. The reliefs sought in the originating processes of the suits were clearly stated on the face of it. The arguments of the Appellant’s counsel that the 2nd – 6th Respondents did not attach the originating processes of the suit in order to enable the trial judge study same before arriving at a conclusion cannot hold water. This is because all the trial Court needed to know is if the subject matter and reliefs sought in the cases referred to are very similar or the same. It is the law that abuse of Court process in regard to multiple actions between the same parties on the same subject-matter may arise when a party improperly uses judicial process to the irritation, annoyance and harassment of his opponent not only in respect of the same subject-matter but also in respect of the same
33
issues in the other action or actions. See IKINE & ORS VS. EDJERODE & ORS (2001) LPELR – 1479.
I have painstakingly read the said judgments and I have reached a conclusion that the three cases are very similar based on the reliefs sought. The reliefs sought in each case were reflected in the judgments.
The Appellant in this instant appeal sought for the determination of questions at the trial Court whether the 1st Respondent had the powers to refuse to publish his name after same had been submitted by his political party All Progressive Congress for the gubernatorial election of Zamfara State for the 2019 general election and if such refusal was not unlawful, null, void and of no effect by virtue of Section 31 (1) (3) and 34 of the Electoral Act (2010). One of the reliefs the Appellant sought is:
An order directing the 1st Defendant to publish the names and particulars of the Plaintiff in its website and the constituency of the Plaintiff, the names and particulars of the Plaintiff as the Governorship candidate of the All Progressive Congress (APC) for Zamfara state in the 2019 general elections.
In Suit No. ZMS/GS/52/2018
34
between Sanusi Liman Dan Alhaji & 37 Ors V APC & 144 Ors, one of the reliefs sought is:
A declaration that the 1st Defendant (INEC) is bound to recognize, accept and forward to the 3rd Defendant the list of candidates that emerged winner in the Governorship National and State Legislative houses primary election of the 1st Defendant in Zamfara State held on the 3rd and 7th of October, 2018.
Also, in Suit No. FHC/ABJ/CS/1279 between APC V INEC & 5 ORS, some of the reliefs sought are:
An order of this Court mandatorily compelling the 1st Defendant to accept the names of the Plaintiff candidates for all the various offices schedule to be contested in the forth coming February, 2019 General Elections in respect of Zamfara State and to be conducted by the 1st Defendant.
An order of Court mandatorily compelling the 1st Defendant (INEC) to publish the names of the Plaintiffs candidate for Zamfar State sent to it by giving some recognition and according to the various persons and candidates nominated by political parties for the Governorship, National and State Assembly constituency and Senatorial districts of Zamfara State.
35
A quick perusal of the reliefs sought in the 3 (three) aforementioned cases from all indications, is clear that they are similar and aimed at getting the same results. One thing remained constant in all the suits, INEC was to be compelled to accept and publish the names of those that emerged winner in the primary elections for various positions that took place in Zamfara State.
It is clearly a case of abuse of Court process to institute this matter on the mere assertion that the Appellant was not a party to the suit. It cannot lie in the mouth of the Appellant to say that he was not a party in Suit No. FHC/ABJ/CS/1279 between APC V INEC & 5 ORS and Suit No. ZMS/GS/52/2018 between Sanusi Liman Dan Alhaji & 37 Ors V APC & 144 Ors. This is because the Appellant’s political party, All Progressive Congress was a party in both suits. The question to be asked is: who is a privy? This has been thoroughly and exhaustively defined in a plethora of cases and also beautifully argued by the Counsel to the 2nd – 6th Respondents.
In the Supreme Court case of IYAJI VS. EYIGEBE (1987) LPELR 1571, it was held per Oputa, JSC that:
“…privies include all
36
those who are privy to the parties, in blood or title or interest and estoppel per rem judicatam operates for, or against not only parties but also those privies mentioned above.”
In the case of ARABIA VS. KANGA (1932) 1 WACA PAGE 254, a privy was defined as that person whose title is derived from and who claims an interest through a party.
From the above cited cases, it is clear that the Appellant is a privy of the All Progressive Congress as he derives his title and interest from the said political party. Every decision of Court made in respect of every suit wherein the All Progressive Congress is a party has a binding effect on all its members and privies. And by this, he is estopped by res judicata and cannot re-litigate the issues all over again.
In the case of ATTORNEY GENERAL OF NASARAWA STATE VS. ATTORNEY GENERAL OF PLATEAU STATE (2012) LPELR 9730, it was held that a plea of res judicata means a thing adjudged between the same parties or their privies by a competent Court cannot be re-litigated upon.
Also, in the Supreme Court case of DAKOLO & ORS VS. REWANE-DAKOLO & ORS (2011) LPELR – 915, it was held that Res
37
Judicata estoppel is necessary to ensure the conclusiveness of judicial decisions and that individuals ought to be protected from vexations and multiplicity of suits.
Finally, it was decided also by the Apex Court in the case of ABUBAKAR VS. BEBEJI OIL AND ALLIED PRODUCTS LTD & ORS (2007) LPELR – 55 that:
“it is now firmly settled in a long line of decided authorities, that where a Court of competent jurisdiction has settled, by a final decision the matters in dispute between the parties, none of the parties or his privy/privies may re-litigate that issue again by bringing a fresh action. The matter is said to be res judicata. The estoppel created is said to be by record inter parties.”
In order not to belabour this issue, it is my decision that the notice of preliminary objection filed by the 2nd – 6th Respondents succeeds as this appeal is an abuse of Court process and must be struck out. To begin to resolve the issues for determination emanating from an appeal which has been regarded to be an abuse of Court process will amount to a waste of the precious time of this Court.
The appeal is hereby struck out. There is no order as to cost.
38
STEPHEN JONAH ADAH, J.C.A.: I was availed a draft copy of the judgment just delivered by my learned brother, Mohammed Baba Idris, JCA.
I agree with the reasoning and the conclusion reached by my learned brother that the appeal is an abuse of Court Process and must be dismissed. I too, hereby uphold the preliminary objection and I according dismiss the appeal. I abide by the Consequential order as made in the judgment.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I had the preview of the lead judgment of my learned brother, MOHAMMED BABA IDRIS, JCA.
I am in agreement with his reasoning and conclusion and orders reached therein.
39
Appearances:
H.M. Liman, SAN with him, I.M. Dikko, SAN, A.F. Amanzi, Esq, M. Danladi, Esq. and F. Umar, Esq.For Appellant(s)
M.A. Magaji, SAN with him, C.K. Udeoyibo, Esq, E. Okoli, Esq, A. Matanmi, Esq., B. Odigie, Esq., I. Johnson Esq., R. Suleiman, Esq. and M. Suleiman, Esq. for the 2nd-6th RespondentsFor Respondent(s)
>
Appearances
H.M. Liman, SAN with him, I.M. Dikko, SAN, A.F. Amanzi, Esq, M. Danladi, Esq. and F. Umar, Esq.For Appellant
AND
M.A. Magaji, SAN with him, C.K. Udeoyibo, Esq, E. Okoli, Esq, A. Matanmi, Esq., B. Odigie, Esq., I. Johnson Esq., R. Suleiman, Esq. and M. Suleiman, Esq. for the 2nd-6th RespondentsFor Respondent
