SIR FRIDAY NWANOZIE NWOSU v. PEOPLES DEMOCRATIC PARTY & ORS(2018)

SIR FRIDAY NWANOZIE NWOSU v. PEOPLES DEMOCRATIC PARTY & ORS

(2018) LCN/4759(SC)

In The Supreme Court of Nigeria

On Friday, the 13th day of April, 2018

SC.693/2017

RATIO

MEANING AND PURPOSE OF A PRELIMINARY OBJECTION

Preliminary objection is the procedure used where a Respondent opposes the hearing of an Appeal, and its purpose is to terminate the hearing of the Appeal in limine either partially or totally – see S.P.D.C.N. V. Amadi (2011) 14 NWLR (Pt. 1266) 157 at 192 SC and Mohammed & Anor V. Olawunmi & Ors (1990) 4 SCNJ 23, wherein Nnaemeka-Agu, JSC, explained the rationale for this as follows- By the preliminary objection, he is saying that the Suit or Motion before the Court ought not be heard at all because it is incompetent or is bedeviled by some other fundamental vice. If the Court, by its Ruling, decides that the objection is not well-founded, that does not necessarily mean that the [said] Suit or Motion – – must succeed. The Court is then bound to consider the Suit or Motion on its merits. PER AMINA ADAMU AUGIE, J.S.C.

POSITION OF THE LAW WHERE AN OBJECTION IS RAISED THAT AN APPEAL CONSTITUTES AN ABUSE OF COURT PROCESS

In my view, the Objection raised by the third Respondent that deals with whether the Appeal is an abuse of Court process or not, must be given priority since an abuse of Court process constitutes a fundamental defect, the effect of which will lead to a dismissal of the process, which is abusive – Dingyadi V. INEC [No.2) (2010) 18 NWLR (Pt. 1224) 154 SC. In other words, once the Court is satisfied that a proceeding before it amounts to an abuse of Court process, it has the right to invoke its coercive powers to punish the Party in abuse of its process, and as this Court stated in Arubo V. Aiyeleru (1993) 3 NWLR (Pt. 280) 125. “quite often, that power is exercised by a dismissal of the action’ which constitutes the abuse.” The point being made is that the objection raised by the other Respondents to the Appellant’s Grounds of Appeal on the ground inter alia that they raise issues of facts or of mixed law and facts, can always await the outcome of third Respondent’s objection. This is because the Court reserves the prerogative and the inherent jurisdiction to protect itself from an abuse of its process, and any case, which is an abuse “must go under the hammer so as to halt the drift created by the abuse”, this Court has this power – See Dingyadi & Anor V. INEC & Ors (2011) 10 NWLR (Pt. 1255) 347 SC. PER AMINA ADAMU AUGIE, J.S.C.

MEANING AND NATURE OF THE CONCEPT OF “ABUSE OF COURT/JUDICIAL PROCESS” AND THE FACTORS THAT MUST COEXIST TO SUSTAIN SAME

What is an abuse of Court process? First off, it is settled that the employment of judicial process is only regarded as an abuse when a party improperly uses the judicial process to the irritation and annoyance of his opponent – see A.G., Anambra State V. UBA (2005) 15 NWLR (Pt. 974) 44 SC, Arubo V. Aiyeleru (supra) and Saraki V. Kotoye (supra) where this Court per Karibi-Whyte, JSC. aptly observed that the common denominator with the concept of abuse of Court process “is the improper use of the judicial process in litigation to interfere with the due administration of justice”. The bottom line is that an abuse of Court process is where a litigant chooses to use the Legal process improperly to annoy and embarrass another through the filing of multiple actions in one or several Courts against the same Parties and on the same Issues – see Umeh & Anor V. Iwu & Ors (2008) 8 NWLR (Pt. 1089) 225 SC. In that case, Umeh & Anor V. Iwu & Ors (supra), this Court per Chukwuma-Eneh JSC, painted a clear picture of what it means – Abuse of Court process 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. This matter of using Court process which is obviously lacking in bona fide leads to the irritation and annoyance of the other party and thus impeding due administration of justice – – Therefore to sustain a charge of abuse of process there must co-exist inter alia – (i) A multiplicity of suits (ii) between the same opponents (iii) on the same subject matter and (iv) on the same issues. All these pre- conditions are mutually inclusive as they are conjunctive. PER AMINA ADAMU AUGIE, J.S.C.

JUSTICES

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

AMIRU SANUSI Justice of The Supreme Court of Nigeria

AMINA ADAMU AUGIE Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria

Between

SIR FRIDAY NWANOZIE NWOSU Appellant(s)

AND

PEOPLES DEMOCRATIC PARTY (PDP)
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. DR.OKEZIE IKPEAZU
4. DR. UCHECHUKWU SAMPSON OGAH Respondent(s)

AMINA ADAMU AUGIE, J.S.C. (Delivering the Leading Judgment): This Appeal is a fallout of the discord that followed the Primary Election conducted by first Respondent to select its gubernatorial candidate for the 2015 General Election. The third Respondent, who won the said Primaries, is the present Governor of Abia State.

The Appellant and fourth Respondent, who vied for that seat, and who lost to the third Respondent, instituted a number of Suits at various Divisions of the Federal High Court, challenging same.

The Appellants Suit initially filed at the Federal High Court, Abuja, was transferred to Federal High Court, Umuahia, and it was again transferred to the Federal High Court, Owerri, [FHC Owerri], where it was given the new Suit number FHC/OW/CS/191/2015.

The fourth Respondent later filed a separate action against the third Respondent at the Federal High Court, Abuja – Suit No. FHC/ABJ/CS/71/2016. The Appellant applied and was joined as a Defendant to the said fourth Respondent’s Suit filed at FHC Abuja, wherein he later challenged the jurisdiction of the said FHC Abuja to hear and determine the

fourth Respondent’s Suit on the ground that it was an abuse of Court process since the fourth Respondent filed same after his own Suit on same subject matter.

The FHC Abuja overruled Appellant’s Objection and entered Judgment in favour of fourth Respondent. The third Respondent appealed against the decision of the FHC Abuja disqualifying him to Court of Appeal, Abuja (COA Abuja). The first Respondent also appealed challenging the disqualification of the third Respondent, and Appellant appealed against the part overruling his Objection.

The COA Abuja allowed the third Respondent’s Appeal and first Respondent’s Appeal but it dismissed the Appellant’s Appeal. It was these three decisions of the COA Abuja that culminated into the three Appeal Nos. SC. 717/2016, SC. 719/20016 and SC.739/2016, which the third Respondent, first Respondent and the Appellant filed in this Court respectively against the decisions of COA Abuja.

Meanwhile, the Appellant’s other Suit filed at the FHC Owerri was dismissed and he had appealed to the Court of Appeal, Owerri {COA Owerri} – Appeal No. CA/OW/190/2016. While the said three Appeals were pending before this

Court, the COA Owerri granted a stay of proceedings of the Appeal before it to await the outcome of the three Appeals before this Court, particularly SC.739/2016.

This Court consolidated the said Appeals and in its Judgment delivered on 12/5/2017; this Court dismissed all the three Appeals. Regarding SC/739/2016, M. D. Muhammad, JSC, concluded that
The Appellant in the instant appeal participated in the 2nd Respondents primary election of 8/12/2014 for the 2015 Abia State gubernatorial election. So did the Appellant in Appeal No. SC/717/2016. Each of them has the right and platform under Section 87(9) of the Electoral Act, the one independent of the other to seek the reliefs the law provides to an “aspirant either of them having participated in the party primary election in respect of which result they are aggrieved. Following his Application, the trial Court ordered that Appellant herein be joined in the Suit commenced by the Appellant in Appeal No. SC.717/2016. Appellant in the instant case needed not necessarily to have been a Party in the Suit subsequently commenced by the Appellant in Appeal No. SC.717/2016 to obtain the

reliefs he earlier approached the Court in his own Suit. The lower Courts finding that the Amended originating Summons of the Appellant in Appeal No. SC/717/2016 is not an abuse of process of Court is therefore, unassailable. The Appellants germane issue in the Appeal is therefore, accordingly resolved against him.

After the Judgment of this Court in the aforesaid three Appeals, the Appellant’s Appeal No. CA/OW/190/2016 came up for hearing at the COA Owerri. However, by an Application filed on 13/6/2017, the third Respondent prayed the COA Owerri for an Order striking out or dismissing the aforesaid Appeal for want of jurisdiction.

The Grounds for the third Respondent’s Objection are as follows –
(i) On 2/12/2016, this Hon. Court stayed further proceedings in Appeal No. CA/OW/190/2016 pending determination of SC/739/2016: Friday N. Nwosu v. Dr. Sampson U. Ogah & 3 Ors.
(ii) The said Appeal No. SC/739/2016 was consolidated with Appeal Nos SC/717/2016: Dr. Sampson U. Ogah v. Dr. Okezie V. Ikpeazu & 3 Ors; SC/719/2016: Dr. Sampson U. Ogah v. PDP and 3 Ors.
(iii) The said three Appeals were determined by the

Supreme Court against the Appellant in favour of 3rd Respondent on 12/5/2017.
(iv) Further to the said Judgment of 12/5/2017 referred to in paras (i), (ii) and (iii) above, this Appeal No. CA/OW/190//2016 has become spent and or academic.
(v) Proceeding with the hearing of the Appeal in the peculiar circumstances of the decision of the Supreme Court in the afore-stated Appeal Nos. SC/717/2016, SC/719/2016 and SC/739/2016 will be tantamount to inviting this Honourable Court of Appeal to review or sit on appeal over the said Judgment of the Supreme Court delivered on 12/5/2017.
(vi) The Court of Appeal has no jurisdiction to sit on Appeal or review or set aside a judgment of the Supreme Court.

The COA Owerri readily agreed with the third Respondent and in its Ruling delivered on 18/7/2017 per Bada, JCA, it concluded thus-
The Learned Counsel for the Appellant’s submission to pursue this Appeal under consideration to finality, is in my view, tantamount to an invitation to this Court to sit on Appeal and review the Judgment of the Supreme Court in Appeal Nos SC/717/2016, SC/719/2016 and SC/739/2016. This is a Jurisdiction, which this Court

does not possess. This Court in its Ruling delivered on 2/12/2016, on the issue of Stay of Proceedings gave a caveat per Agbo JCA that:
Any attempt to continue with the hearing of this Appeal will not only scandalize the judicial system but will do violence to the principle of stare decisis and create avoidable judicial anarchy.
Consequent upon the foregoing, I am of the view that this Appeal i.e. CA/OW/190/2016 is spent and it has become academic in view of the decision of the Supreme Court delivered on 12/5/2017 in Appeal Nos SC/717/20016, SC/719/2016 and SC/739/2016.

It is this Ruling delivered by the COA Owerri on 18/1/2017 that is the subject of this second Appeal filed by the Appellant in this Court.

The Notice of Appeal he filed contains six Grounds of Appeal, and the first, second and fourth Respondents are challenging the competency of the Grounds of Appeal. They each filed a Notice of Preliminary objection that they argued in their respective briefs.
The third Respondent also filed a Notice of Preliminary Objection, but he is challenging the jurisdiction of this Court

to entertain the Appeal itself in the first place. Thus, he is praying this Court for –
An Order dismissing Appeal No. SC.693/2017: Sir Friday Nwanozie Nwosu v. PDP & 3 Ors., as constituting an abuse of the process of Court and for want of jurisdiction.

The Grounds for the third Respondent’s Objection are as follows –
i. This Appeal No.SC.693/2017 arose from the decision of the COA Owerri delivered on 18/7/2017 in Appeal No. CA/OW/190/2016: Sir Friday Nwanozie Nwosu v. PDP & 3 Ors.
ii. By an order of the COA Owerri made on 2/12/2016, the COA Owerri stayed further proceedings in Appeal No. CA/OW/190/2016: Sir Friday Nwanozie Nwosu v. PDP & 3 Ors., pending determination of Appeal No.SC.739/2016: F. N. Nwosu v. Dr. S. U. Ogah & 3 Ors.
iii. The ground for the said order of stay of proceedings is that the said Appeal No. CA/OW/190/2016 is related to the same Parties, the same facts, the same issues; and arose from the same subject matter as the Supreme Court Appeal No. SC.739/2016 and that –
Any attempt to continue with the hearing of this Appeal will not only scandalize the judicial system but will do violence to the principle of stare decisis and

create avoidable judicial anarchy.
iv. The Appellant in this Appeal — did not Appeal against the decision of the COA Owerri in Appeal No. SC.739/2016. – – on grounds that the Parties, the facts, the Issues and subject matter were the same as the Appellant’s Appeal then before the Supreme Court in Appeal No. SC.739/2016. Thus, the said decision of the COA Owerri given on 2/12/2016 remains unchallenged, inviolate and binding on the Appellant to this day.
v. The 3rd Respondent in the present Appeal No. SC.493/2017 was the 3rd Respondent in the said Appeal No. SC.739/2017. The aforesaid Appeal No.SC.739/2016: Sir F Nwosu v. Dr. S. U. Ogah & 3 Ors was consolidated with Appeal Nos SC/717/2016: Dr. Sampson U. Ogah v. Dr. O. Ikpeazu & 3 Ors and SC/719/2016: Dr. Ogah V. PDP & 3 Ors.
vi. On 12/5/2017, the Supreme Court determined and dismissed the aforementioned Appeal NO.SC.739/2016: Sir F. Nwosu v. Dr. S. U. Ogah & 3 Ors alongside Appeal Nos SC/717/2016 and SC/719.2016.
vii. Pursuant to the Application of the 3rd Respondent urging the COA Owerri to strike out the said Appeal No. CA/OW/190/2016 as having become academic, spent,

speculative and hypothetical in the light of the Supreme Court decision of 12/5/2017 on Appellant’s Appeal No. SC.739/2016. COA Owerri on 18/7/2017 struck out the Appeal No. CA/OW/190/2016 on the ground that this Appeal has become spent in view of the decision of the Supreme Court delivered on 12/5/2017 in Appeal Nos SC/717/2016. SC/717/2016 & SC.739/2016.
viii. Further to paragraphs (i) – (vii), this Appeal No. SC.693/2017 arising from the decision of COA in Appeal No. CA//OW/190/2016 given on 2/12/2016 and 18/7/2017 constitute an unrepentant abuse of the process of Court in consequence of which the Supreme Court has no jurisdiction to entertain the Appeal in that:
(a) The Appeal is an attempt to re-litigate issues already decided between the same Parties, on the same facts and subject matter in Appeal No. CA/OW/190/2016 by the COA Owerri on 2/12/2016, which stayed further proceedings in this Appeal pending the determination of the Appellant’s Appeal in the Supreme Court in Appeal No. SC/739/2016. The said decision of 2/12/2016 was never challenged on Appeal. The decision is therefore binding on the Appellant.

(b) The Appeal is also an attempt to re-litigate the issues already decided by the Supreme Court in Appeal Nos. SC/717/2016; SC/719/2016 and SC/739//2016 between the same parties on the same issues and subject matter (i.e. whether the 3rd Respondent is disqualified from contesting the 2015 Governorship election in Abia State under the platform of PDP for allegedly forging or presenting forged or false tax papers to INEC for purposes of the said election).
(c) The Appeal is an unnecessary addition to the multiplicity of actions that have arisen from the same subject matter against the same opponent (3rd Respondent in this case) already determined in 3rd Respondents favour in May 2017.
(d) The Appeal has become academic, spent, hypothetical and speculative in the light of the Supreme Court decisions in the earlier Appeal Nos. SC/717/2016: SC/719/2016 and SC/739/2016 on the same facts, between the same Parties over the same subject matter.
(e) The Appeal is also an attempt to bring the judicial process or system into disrepute, ridicule or contempt with a view to undermining the integrity of the earlier decisions of the Supreme Court on the same

subject matter between the same Parties and thereby introducing anarchy to the judicial system as the Appeal is in direct conflict with and thus, a sabotage of the subsisting Orders and decisions of the Supreme Court in Appeal Nos. SC/717/2016; SC/719/2016 and SC/739/2016. It is in the interest of justice, the public as well as the democratic and judicial systems that there should be an end to litigation, particularly, when subject matter of the litigation has been fully determined by the Supreme Court. which is the apex Court of the land.

Preliminary objection is the procedure used where a Respondent opposes the hearing of an Appeal, and its purpose is to terminate the hearing of the Appeal in limine either partially or totally – see S.P.D.C.N. V. Amadi (2011) 14 NWLR (Pt. 1266) 157 at 192 SC and Mohammed & Anor V. Olawunmi & Ors (1990) 4 SCNJ 23, wherein Nnaemeka-Agu, JSC, explained the rationale for this as follows –
By the preliminary objection, he is saying that the Suit or Motion before the Court ought not be heard at all because it is incompetent or is bedeviled by some other fundamental vice. If the Court, by its Ruling,

decides that the objection is not well-founded, that does not necessarily mean that the [said] Suit or Motion – – must succeed. The Court is then bound to consider the Suit or Motion on its merits.

In this case, this Court is faced with four Preliminary objections by each of the four Respondents, and the question now is which one takes precedence in resolving the issue of whether this Appeal is incompetent or is bedeviled by some other fundamental vice.

of the action’ which constitutes the abuse.”
The point being made is that the objection raised by the other Respondents to the Appellant’s Grounds of Appeal on the ground inter alia that they raise issues of facts or of mixed law and facts, can always await the outcome of third Respondent’s objection.
This is because the Court reserves the prerogative and the inherent jurisdiction to protect itself from an abuse of its process, and any case, which is an abuse “must go under the hammer so as to halt the drift created by the abuse”, this Court has this power – See Dingyadi & Anor V. INEC & Ors (2011) 10 NWLR (Pt. 1255) 347 SC.

In this case, the third Respondent cited the following on the definition of an abuse of Court process – Saraki V. Kotoye (1992) 1 NWLR (Pt. 264) 156 CBN V. Ahmed (2001) 11 NWLR (Pt. 724) 369, and submitted that this Appeal falls within the stated definition.

Most of his arguments/submissions thereon are as reflected in the Grounds of his Objection reproduced above. Suffice it to say that his position is that Parties, issues, facts and subject matter sought to be re-litigated by the

Appellant in this Appeal are all the same as his earlier Appeal determined by this Court on 12/5/2017 in SC/739/2016 consolidated with SC/717/2016 and SC/719/2016. therefore, this Appeal constitute a flagrant abuse of the process of this Court, citing Arubo V. Aiyeleru (supra), Adigun & Ors V. Sec. Iwo LGA & Anor (1999) 8 NWLR (Pt. 613) 34, Oluwaniyi V. Adewumi (2008) 13 NWLR (Pt. 1104) 387, Abubakar V. Bebeji Oil & Allied Products Ltd (2007) 18 NWLR (Pt. 1066) 319 SC. A.G. Anambra V. Uba (2005) All FWLR (Pt. 277) 909, N.I.C V. FCI Ltd (2007) 2 NWLR (Pt. 1019) 610 and Okorocha v. PDP (2014) 7 NWLR (Pt. 1406) 213 SC.

He also argued that this Appeal constitutes an abuse of Court process on the ground of multiplicity of actions (or of Appeals), citing Okorodudu V. Okoromadu (1977) 3 SC 2l. Oyegbola V. Esso West African Inc. (1966) 1 ALL NLR 170, Mogaji V. NEPA (2003) FWLR (Pt. 153) 239, Dingyadi V. INEC (2010) FWLR (Pt. 550) 1204: and that Appellant ought to have known that this Appeal, which seemed viable before the said decisions of this Court, had become unviable, doomed or dead, following its determination of those Appeals on 12/5/2017, which completely snuffed the life out

of this Appeal, and thereby rendered it spent or academic or speculative, citing YarAdua V. Abubakar (2008) 19 NWLR (Pt. 1120) 236 SC.

He further submitted that unlike the situation in the cases of Saraki v. Kotoye (supra) and CBN V. Ahmed (supra), the Appellant cannot hide under the excuse that he is pursuing his constitutional right of appeal or that the Court of Appeal and Supreme Court held that he could pursue Suit No. FHC/OW/CS/191/2015 independently of the fourth Respondent’s Suit No. FHC/ABJ/CS/71/2016 and the Appeal Nos. SC/717/2015 and SC/719/2016, to pursue this Appeal; that as rightly found by this Court in his Appeal No. SC/739/2016, that Appeal and this Appeal relate to the same subject matter, Parties, facts and issues, therefore, with the determination of his Appeal No. Sc.739/2016 by this Court on 12/5/2017, the Appellant lost whatever constitutional right of appeal that enured in his favour to pursue this Appeal, as there must be an end to litigation.

Furthermore, that having regard to the earlier decision of COA Owerri given on 2/12/2016 (which was not appealed against), and in particular, the said Judgment of this

Court in SC/739/2016, SC/717/2016 and SC/719/2016, wherein this Court held that the said Suit No. FHC/OW/CS/191/2015 from which this Appeal arose is on all fours with the facts, issues, Parties and subject matter in suit No. FHC/ABJ/CS/71/2016 from which the Appeal No. SC/739/2016 consolidated with SC/717/2016 and SC/719/2016 arose, this Appeal is a most unpardonable and unrepentant abuse of Court process, citingObi V. INEC [No 3] (2009) 6 – 7 SC (Pt. 11) 1, J.C Ltd V. Ezenwa (1996) 4 NWLR (Pt. 443) 392, and Okorocha V. PDP (supra).

The Appellant argued in his Reply Brief that an examination of the third Respondent’s Grounds of Objection discloses that he lost grasp of the true state of his case that gave rise to this Appeal; that his contention in SC/739/2015 was that the fourth Respondent abused the process of Court when, as the fourth Defendant in the Appellant’s earlier Suit, he photocopied or replicated the process that he served on him, and then filed a subsequent and fresh Suit.

He submitted that this Court had upheld his right to pursue and conclude his own right of action, for which he sued

earlier at the trial Court in FHC/OW/CS/191/2015, which is what is pending in this Appeal, for the determination on merit now before this Court, and urged this Court to examine the Grounds of objection to this Appeal to determine its substance, the Court being imposed with this duty in law”, citing Eya V. Olopade (2011) LPELR-1184(SC).

He also argued that the said Order of COA Owerri is not one on the merit of his Appeal, though it can qualify as a final Order to which he is entitled to appeal against by virtue of our extant laws, as he cannot go back to the same Court to challenge or change it, because COA Owerri having declined jurisdiction over his case as presented to it, has in law become functus officio Alor & Anor. V. Ngene & Ors. (2007) LPELR-431(SC); that COA Owerri wrongly determined his right, and the only option open to him in pursuit of his right is this Appeal; and that the exercise of his constitutional right of appeal cannot be held to be an abuse of Court process.

He further argued that his claim in Appeal No. SC/739/2016 was that fourth Respondent committed abuse of Court process in the Suit leading to the Appeal Nos.

SC/717/2016 and SC/719/2016, while his claim in this Appeal, which arose from his earlier in time suit is based on the submission of false information by the third Respondent to second Respondent contrary to Section 31(5) (6) of the Electoral Act 2010, and the fact that the fourth Respondent condemned and rejected the primary election of 8/12/2014, thus, he cannot benefit from the exercise he condemned and rejected.

It is his contention that the position of third Respondent is “misconceived and unsupported in law, logic and in fact, going by the abundance of legislative enactments and case laws” and for a better understanding of the true state of the Appeals, he argued:
a) Although the Judgment in SC/717/2016, SC/719/2016 and SC/739/2016 were consolidated, however in the Judgment it was decided that –
-At the hearing of the three Appeals it was particularly agreed that Appeal No. 719/2016 shall abide by the decision in Appeal No. SC.717/2016. I so order”
b) The decision in SC/717/2016 do not bind SC/739/2015 as they are cases of different causes, issues and reliefs, though of the same Parties;
c) In SC/717/2016, the main issue presented

by the 4th Respondent and determined by this Court was the non-payment of tax as and when due by the 3rd Respondent, the failure to prove his case arose from paucity or fact of evidence adduced by the 4th Respondent herein and Appellant in SC/717/2016 in accordance with the principles of proof;
d) In SC/739/2016 the issue that he presented, which was determined by this Court was whether the suit of the 4th Respondent herein, who was 1st Respondent therein, was not an abuse of Court progress regarding the fact that his (Appellant’s) Suit No.FHC/OW/CS/191/2015 Sir Friday Nwanozie Nwosu v. PDP & 3 Ors, which later became Appeal No. CA/OW/190/2016, and is now Appeal No. SC/693/2017 was earlier in time with the 4th Respondent herein also as a Defendant;
e) The relief he sought in Appeal No. SC/739/2016 was for the dismissal of the 4th Respondent’s case for being an abuse of his earlier instituted Suit No. FHC/OW/CS/191/2015, which later became Appeal No. CA/OW/190/2016 and is now Appeal No. SC/693/2017;
f) This Court dismissed his Appeal No. SC/739/2016 on the ground that he and 4th Respondent having participated in the said Governorship primary

election in question have separate and independent rights of action pursuant to the said Section 87 (9) of the Electoral Act 2010, and that none of their respective Suits can abuse the other, hence that they can pursue their reliefs sought independently;
g) His principal relief in this Appeal is predicated on the 3rd Respondent presenting false information to INEC in his Form CF001 and other documents in support of his nomination contrary to Section 31 (5)(6) of the Electoral Act 2010 (as amended; and that –
h) In the consolidated Judgment of this Court in the said SC.717/12015, SC/719/2015 and SC/739/2016, this Court decided inter alia that-
(i) SC/719/2016 shall abide the Judgment in SC/717/2015.
(ii) SC/717/2016, which binds SC/719/2016, is not an abuse of Court process in his CA/OW/190/2016, then pending at the COA Owerri, which now gave rise to this Appeal No. SC/693/2016.
(iii) He, Appellant, needed not to have even applied and be joined in the said fourth Respondent’s Suit that gave rise to SC/717/2015 and SC/719/2015 since he had earlier on instituted his own action (this Appeal) first before the fourth Respondent.<br< p=””

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(iv) He, Appellant, should rather pursue the reliefs he had sought in his first in time Suit (which was then pending at the COA Owerri) and has now given rise to this Appeal No. SC/693/2017.
(v) Pursuant to Section 87(9) of the Electoral Act 2010 (as amended), he and the fourth Respondent, having participated as Aspirants in the 1st Respondent’s Governorship Primary Election of 8/12/2014, which conduct is being complained about by each of them, that they have rights of action separate and independent of the other.
(vi) The fourth Respondent’s claim in SC/717/2016 and SC/719/2016 (CA/A/390 and 390A/2016) (FHC/ABJ/CS/71/2016) was dismissed for paucity or the lack of evidence in proof of his claim that the third Respondent herein did not pay his taxes as and when due.
(vii) The Respondents cannot ignore those decisions and turn round to plead estoppel and/or abuse of Court process in this Appeal, which had earliest in time begun before the consolidated Appeals, as Suit No. FHC/OW/CS/191/2016, and so, it cannot be an abuse of Court process neither will the doctrine of estoppel catch up with it.

To separate the wheat from the chaff, it is the

third Respondent’s contention that this Appeal is an abuse of Court process because the Parties, Issues, facts and subject-matter are all the same with the Appellant’s earlier Appeal; and because this Appeal is “spent following the determination of the Appellant’s earlier Appeal.

The Appellant’s position is that the issues in both Appeals are not the same, and since this Court held in the earlier Appeal that as an “aspirant in the terms of Section 87(9) of the Electoral Act, he had every right to pursue his own Appeal, this Appeal cannot be regarded or treated as an abuse of the process of this Court.

What is an abuse of Court process First off, it is settled that the employment of judicial process is only regarded as an abuse when a party improperly uses the judicial process to the irritation and annoyance of his opponent – see A.G., Anambra State V. UBA (2005) 15 NWLR (Pt. 974) 44 SC, Arubo V. Aiyeleru (supra) and Saraki V. Kotoye (supra) where this Court per Karibi-Whyte, JSC. aptly observed that the common denominator with the concept of abuse of Court process “is the improper use of the judicial process in litigation to interfere with the due administration of justice”.

The bottom line is that an abuse of Court process is where a litigant chooses to use the Legal process improperly to annoy and embarrass another through the filing of multiple actions in one or several Courts against the same Parties and on the same Issues – see Umeh & Anor V. Iwu & Ors (2008) 8 NWLR (Pt. 1089) 225 SC.
In that case, Umeh & Anor V. Iwu & Ors (supra), this Court per Chukwuma-Eneh JSC, painted a clear picture of what it means –
Abuse of Court process 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. This matter of using Court process which is obviously lacking in bona fide leads to the irritation and annoyance of the other party and thus impeding due administration of justice – – Therefore to sustain a charge of abuse of process there must co-exist inter alia – (i) A multiplicity of suits (ii) between the same opponents (iii) on the same subject matter and (iv) on the same issues. All these pre- conditions are mutually inclusive as they are conjunctive.

In this case, the Appellant is not contesting the fact that Parties in this Appeal are the same as in his earlier Appeal No. SC.739/2016. However, he insists that the Issues in both Appeals are different.

In considering Appeal No. SC.717/2015, which binds the sister Appeal No. SC.719/2016, M. D. Muhammed, JSC, stated as follows-
Appellant’s claim – – is two pronged – – he asserts, 1st Respondents participation in 2nd Respondents primary election – – and subsequent nomination as the Partys flag bearer – – without lawful personal income tax certificate and/or any lawful exemption from the payment of the tax constitutes a breach of Article 14 (a) in Part IV of 2nd Respondent’s (PDP) Electoral Guidelines and Constitution. – – – The 2nd leg of the Appellant’s claim – – – he contends that quite apart from the breach of 2nd Respondent Constitution and Electoral Guidelines occasioned by non-availability of 1st Respondent’s valid Personal Tax Certificate at the time of the primary election, the false information supplied by the 1st Respondent regarding his Personal Income Tax in INEC Form CF001 duly completed and signed by him, also vitiates his candidature

in 2015 Abia State Gubernatorial Election – – – On the Court’s positive determination of the foregoing issues, the Appellant as Plaintiff prayed the trial Court several declaratory and injunctive orders to disqualify the 1st Respondent from being the 2nd Respondent’s flag bearer at the 2015 Abia State Gubernatorial Election and, being the first runner up in the Partys primary election, to declare him the 2nd Respondents lawful flag bearer in the election.

To be clear, the third Respondent and Appellant in this Appeal and SC.739/2015 were the first and fourth Respondents respectively in Appeal No. SC.717/2016. While considering SC.739/2016 in the same consolidated Judgment, M. D. Muhammad, JSC, observed –
Dissatisfied by the outcome of the Primary Election, the Appellant commenced Suit No. FHC/OW/191/2015, challenging the qualification of the 3rd Respondent to participate in and be nominated the Partys flag bearer by virtue of the 2nd Respondent’s Primary Election that held on 8/12/2014. The Appellant’s contention in the Suit is that the 3rd Respondent presented false tax clearance, income tax receipts and information in the

Affidavit in support of his personal particulars submitted to INEC, 4th Respondent herein. Having presented these false documents which stand in breach of Article 14 of the PDP Primary Election Guidelines 2014 the 3rd Respondent stands disqualified from contesting the 2nd Respondent’s Primary Election, It is apparent that Appellants claim is on all fours as the claim pursued separately by the Appellant in Appeal No. SC.717/2016 by virtue of the latters Amended Originating Summons.

There it is; this Court clearly stated in Appeal No. SC.739/2015 that his claim in the Suit filed at FHC Owerri “is on all fours as the claim pursued separately by the Appellant in Appeal No- SC.717/2016”, and juxtaposed with the comment in SC.717/2015 that Appellant therein prayed the trial Court to disqualify the third Respondent herein and to declare him the second Respondent’s flag bearer, which this Court flatly refused to do, it follows that the Appellant, who also made the same prayer, will have to suffer the same fate.

This is the point made by the third Respondent that even if the Issue resolved by this Court in Appeal No.

SC.739/2015 affirmed the Appellant’s right to pursue his own Appeal, having determined the main claim in his favour, Appellant ought to have backed off.

In arguing as he did, the Appellant closed his eyes to the fact that his ultimate goal in pursuing this Appeal is to have this Court disqualify the third Respondent and replace him as the Governor of Abia State. One of the reliefs he sought at the FHC Owerri is for an Order compelling and directing second Respondent to accept, deal and recognize him as the PDP flag bearer and governorship candidate and replace the name of the third Respondent with his name in its list of gubernatorial candidates in the 2015 Election.

Then in Appeal No. CA/OW/190/2015, the Appellant prayed COA Owerri to set aside the Judgment of FHC Owerri against him, and order second Respondent (INEC) to withdraw the certificate of Return it had issued to the third Respondent, and issue him with a fresh certificate of Return as the elected Governor of the State.

In this Appeal, the Appellant is praying this Court to invoke its powers under Section 22 of the Supreme Court Act and grant the same reliefs – direct INEC to withdraw

the Certificate of Return it issued to third Respondent and issue Appellant a fresh Certificate “as the duly elected Governor of Abia State by virtue of the said April 2015 Governorship election held in Abia State or how so even cause the Appellant to be presented for swearing in to office as the duly elected Governor of Abia State. He is also praying for –
An order directing the Chief Judge of Abia State or President of the Customary Court of Appeal of Abia State or any other chief Judge in the Federal Republic of Nigeria to swear in the Appellant as the Governor of Abia State.

What does this say In asking this Court to look into the same Issue of qualification or non-qualification of the same third Respondent on the same grounds as canvassed in that Appeal No. SC.717/2016, the Appellant is praying this Court to review or sit on appeal over its earlier decision that was settled in favour of third Respondent.

I cannot put it better than Agbo, JCA, put it in the Ruling of the COA Owerri delivered on 2/2/20l5, which hits the nail on the head:
Any attempt to continue with the hearing of this Appeal will not only scandalize the Judicial system but will

do violence to the principle of stare decisis and create avoidable judicial anarchy.

The third Respondent used the word “spent. Surely, “something that is spent has been used so that it no longer has any power or effectiveness” – see Cambridge Dictionary. The Appellant’s claim in the Suit filed at FHC Owerri that led to this Appeal, and which is on all fours as the claim” in Appeal No. SC.717/2016 is in fact spent.

This Court affirmed the decision of COA Abuja setting aside the disqualification of third Respondent in Appeal No SC.717/2017. In effect, it upheld his qualification to contest the said Primaries, and ultimately his election as Executive Governor of Abia State.

The third Respondent’s Objection is upheld, and this Appeal No. SC.693/2017 is hereby, dismissed. The Appellant is ordered to pay costs of One Million Naira to each one of the four Respondents.

OLABODE RHODES-VIVOUR, J.S.C.: I read in draft the judgment delivered by my learned brother, Augie, JSC. I am in complete agreement with her lordships reasoning and conclusion. The issue of the 3rd respondents qualification

or non-qualification has been decided by this Court. This appeal is asking this Court to examine the same issue already decided by this Court. It is about time precious judicial time is spent on serious issues and not on issues framed to waste the time of the Court.

As quite rightly concluded by my learned brother the appeal is dismissed and the appellant is ordered to pay costs of one million naira to each of the respondents.

MARY UKAEGO PETER-ODILI, J.S.C.: I am at one with my learned brother, Amina Adamu Augie JSC in the judgment and reasonings just delivered and to register on record that support I shall make some remarks.

This is an appeal against the judgment of the Court of Appeal sitting in Owerri in which the Court of Appeal or Court below or lower Court declined jurisdiction to proceed and struck out the appeal, was delivered on the 18th day of July, 2017, Coram: Jimi Olukayode Bada, Tom Shuaibu Yakubu, Rita Nosakhare Pemu, Tijani Abubakar and Yargata Nimpar JJCA.

Briefly, the appellant as Plaintiff filed an originating summons against the respondent at the Federal High Court,

Abuja on 2nd March 2015 which matter was transferred to the Federal High Court, Owerri presided over by A. Lewis-Allagoa J who heard the matter and in the judgment of 8th July, 2016 dismissed the suit in its entirety.

The background facts leading to this appeal are well set out in the leading judgment and I shall not repeat them unless there is need to refer to any part thereof.

On the 17th day of January, 2018, learned counsel for the appellant, A. C. Ozioko Esq. adopted his brief of argument filed on 6th October, 2017 and reply briefs to the 1st, 2nd, 3rd and 4th respondents filed on 8th January 2018, 8th January, 2018, 5th December, 2017 and 5th December 2018 respectively,

The appellant crafted three issues for determination which are thus:-
(i) Whether the lower Court was wrong in declining jurisdiction to hear and determine Appellant’s Appeal No. CA/OW/190/2016 and striking out the said appeal on the ground that proceeding to hear same would amount to a review of Appeal Nos. SC/717/2016,. SC/719/2016 and SC/739/2016.
(ii) Whether it was right for the lower Court to rely on what it termed conflicting affidavits of the appellant,

and the earlier ruling of the Court of Appeal staying proceeding in the matter, to decline jurisdiction to hear the appeal.
(iii) Whether the lower Court was right when it struck out the appeal and failed to determine same one way or the other on merit to give the Supreme Court the benefit of its opinion on the merits of the case in the event that its decision declining jurisdiction is upturned.

Dr. Livy Uzoukwu SAN of counsel for the 1st respondent adopted its brief of argument filed on 29th November 2017 in which he raised and argued a Preliminary Objection. He however identified two issues for determination in the event that the Preliminary Objection failed and the issues are stated hereunder, viz:-
(i) Whether the lower Court was not right when it held that Appeal No. CA/OW/190/2016 and Appeal No. SC/739/2016 which was consolidated with Appeal No. SC/719/2016 have the same parties and same subject matter and in consequence of the judgment of this Honourable Court in the consolidated appeals aforesaid, Appeal No. CA/OW/190/2016 has become spent and academic and the lower Court lacked the

jurisdiction to entertain it and rightly stuck it out
(ii) Whether having regard to the ruling of the lower Court on 2 December 2016 staying proceedings in Appeal No. CA/OW/190/2016 and the decision of the Supreme Court in the consolidated appeals aforesaid, the lower Court was not right when it did not consider the merits of Appeal No. CA/OW/190/2016

Learned counsel for the 2nd respondent, J. T. U. Nnodum SAN adopted the brief of argument settled by Asiwaju A. S. Awomolo SAN in which he argued a Preliminary objection and leaving room for a possible failure of the objection identified two issues for determination in the appeal which are thus:-
(a) Whether the Court of Appeal was right in declining jurisdiction to hear the appellant’s appeal on the ground that the subject matter of the appeal had been determined by the Supreme Court in the consolidated appeals Nos. SC/717/2016, SC.719/2016 and SC. 739/2016 and the appeal had become academic and spent.
(b) Whether the failure of the Court of Appeal to decide the substantive appeal on the merit, in the alternative, occasioned a miscarriage of justice to the appellant.

Chief Theo Nkire of counsel for the 3rd respondent adopted his brief of argument filed on 28th November 2017 in which he argued his Preliminary Objection and in the alternative raised two issues for determination in the appeal thus:-
(i) Having regard to the reasons for the Court of Appeal decisions given on 2nd December 2016 and 18th July, 2017 that appellant’s instant appeal and his earlier appeal in SC/739/2016 relate to the same parties, facts, issues and subject matter, whether the Court of Appeal was not right in striking out appellant’s appeal on 18th July, 2017 following dismissal by the Supreme Court on 12th May, 2017 of Appellant’s appeal No. SC/739/2016.
(ii) Having regard to 3rd Respondent’s Preliminary Objection founded upon the Supreme Court judgment in Appellant’s Appeal SC/739/2016, whether the decision of the Court of Appeal on the said objection on 18th July, 2017 is not a determination of appellant’s appeal on the merits ‘one way or the other’, and whether the appellant’s invitation to the Supreme Court to exercise its general powers under Section 22 of the Supreme Court Act or to indirectly (by this appeal) review its final decision in appeal No.

SC/739/2016 is proper in the circumstance.

Learned counsel for the 4th respondent, Ms Prisca Ozoilesike adopted the brief of argument settled by O. J. Nnadi SAN and filed on 29th November, 2017. In it, he argued his Preliminary Objection and went on to raise two issues for determination in the appeal in the event the Preliminary Objection failed. The issues are as follows:-
(i) Whether the Court of Appeal was right to decline jurisdiction to entertain the appellant’s appeal No. CA/OW/190/2016 based on the findings of the Court that the appeal is vain, has become academic, hypothetical and amounts to an invitation by the appellant to the Court below to review or sit on appeal or annotate the judgment of this Court in SC/717/2016, SC/719/2016 and SC/739/2016.
(ii) Whether the appellant who did not ask Court for or seek a relief or prayer consolidate the hearing of the motion Notice of the 3rd respondent with substantive appeal even while opposing motion on Notice to dismiss or strike appeal No. CA/OW/190/2016 on 18th May 2017 can complain in this Court as to the procedure adopted by the Court below which he acquiesced when the Court below exercised the

discretion to determine the issue of jurisdiction first before hearing the appeal and whether in this appeal Section 22 of the Supreme Court Act could be invoked to hear a vain, academic and hypothetical appeal that is contrary to Section 287(1) of the 1999 Constitution of Nigeria (as amended).

It is stating the obvious that the preliminary Objections raised by the respondents would be first tackled before anything else can be done as the Court has to be satisfied that it is competent and seised with jurisdiction to entertain the appeal.

PRELIMINARY OBJECTIONS
The 1st respondent/objector contends that all six grounds of appeal are devoid of competence and the Court therefore lacks jurisdiction to entertain the appeal. The objector distilled a sole issue from the 11 grounds of the objection and it is thus:-
Whether the appeal hereof is not incompetent and this Court has no jurisdiction to hear and determine
The 2nd respondent/objector had a grouse over grounds 1,2,3,4 and 5 which it contends were grounds of mixed law and facts, and leave of either the Court of Appeal or of the Supreme Court sought if and/or

obtained. Also in respect to ground 6, that it did not arise from the ratio decidendi or any part of the decision appealed against,
The 3rd respondent/objector predicated his objection to the competence of the appeal on the ground that the Supreme Court lacks jurisdiction to entertain the appeal as the appeal is a flagrant abuse of process of Court.
For the 4th respondent his objection is based on the fact that grounds 1, 2, 3,4, 5, and 6 were issues not of pure Law but rather of facts or mixed Law and facts and leave of either the Court of Appeal or Supreme Court was not sought and/or obtained. That the situation portrayed an incompetent appeal which has robbed the Supreme Court of jurisdiction to entertain.

The appellant responded to each of the objections individually in his respective reply briefs.

Clearly the objections are similar and founded on the same grounds and so the answer to one would take care of the other objections. I shall utilise the sole issue crafted by the 1st Objector which is thus:-
Whether the appeal hereof is not incompetent and this Honourable Court has no jurisdiction to hear and determine it

Learned counsel for the 1st objector stated that though the appellant branded the five grounds ”errors in law” and the one ground “misdirection in law”, they were really grounds of facts or mixed law and facts and so leave of either the Court of Appeal or this Court was of essence. He citedEhinlanwo v Oke (2008) 16 NWLR (Pt.1113) 357 at 389; Odunukwe v Ofomata (2010) 18 NWLR (Pt.1225) 404 at 424 etc; Section 233 (2) of the 1999 Constitution.

That since appellant neither obtained leave of the Court below or Supreme Court, The Notice and Grounds of Appeal are incompetent and so this Court lacks jurisdiction to hear and determine the appeal. He citedOdunukwe v Ofomata (supra) at 440; Njemanze v Njemanze (2013) 8 NWLR (Pt.1356) 376 at 402,403; Metal Construction (WA) Ltd v Migliore (1990) 1 NWLR (Pt.126) 299 at 311.

The objector further submitted that Grounds 2, 5 and 6 of the Appeal did not challenge any ratio decidendi in the judgment of the Court below and so those grounds are also incompetent. He urged the Court to strike out the appeal citing Oje v Babalola (1991) 4 NWLR (Pt.185) 267 at 276; A. G. Bendel State v Aideyan (1989) 4 NWLR (Pt.118) 646.

In response, learned counsel for the appellant submitted that the task of determining whether an appeal is based on law or on mixed law and facts is a difficult one. He cited Ogbechie & Ors v Onochie & Ors (1986) 2 NWLR (Pt.23) 484 at 492; United Bank for Africa Limited v Stahlbau GMBH & CO KG (1989) NWLR (Pt.110) 374;

That even if the particulars in support of the appeal are discountenanced, the appeal remains competent since the said grounds of appeal had given sufficient notice of complaints against the decision of the lower Court to the respondents to enable them know and adequately prepare for the appeal. He referred to Abiola v Federal Republic of Nigeria (1995) 1 NWLR (Pt.370) 155; Iwuoha v NIPOST (2003) 8 NWLR (Pt.822) 308; Osasona v Ajayi (2004) 5 SC (Pt.1) 88 at 96; Leasing Company Nigeria v Tiger Industries Limited (2007) 14 NWLR (Pt. 1054) 346; That the grounds are really of law and so are competent. He cited Dakolo & Ors v Rewane-Dakolo & Ors (2011) LPELR-915 (SC).

Learned counsel for the appellant stated that the lower Court had not evaluated any evidence before reaching conclusion

and so the issue of mixed law and facts do arise. That there was no issue of any of the grounds not being connected with the contention between the parties.

These Preliminary Objections are really on same points that is grounds 1,2,3,4,5,and 6 of the Notice of Appeal raised issues of facts or at least of mixed law and facts and that the said particulars should be declared incompetent by this Court, what seems to me to be at play is technicality taken too far as even where the particulars as presented are discountenanced the appeal remains competent as the respondents are not left in the dark as to what the complaints are so as to prepare the adequate response to those concerns raised in the appeal.
I refer to Abiola v. Federal Republic of Nigeria (1995) 1 NWLR (Pt.370) 155; Iwuoha v NIPOST (2003) 8 NWLR (Pt.822) 208; Osasona v Ajayi (2004) 5 SC (Pt.1) 88 at 96.
It needs to be said that whether an appeal has raised issue of law or facts or mixed law and facts is a matter determined from the grounds of appeal distinct from the particulars which merely support such grounds of appeal.
The essence of the particulars is the setting out

briefly the aspect of either the substantive law or the procedural law that is affected by the error or misdirection identified or complained of in the ground of appeal.
The point was well stated in the case of Dakolo v Rewane-Dakolo & Ors (2011) LPELR-915 (SC); where the Supreme Court stated as follows:-
“Grounds of appeal are to be differentiated from their particulars- while the grounds of appeal must clearly state what the appellant is complaining about, whereas the essence of the particulars of a ground of appeal is to set out briefly the aspect of substantive law or procedural law that is affected by the error or misdirection identified or complained of in the ground of appeal. per ADEKEYE, J.S.C (P.35, paras. B-E).

The dispute or contention between the parties and which is the subject matter of this appeal is whether by the decisions of this Court in SC/717/2016, SC/719/2016 and SC/739/2O16, the appellant can continue or prosecute his appeal NO. CA/OW/190/2016 before the Court of Appeal which lower Court had held that those appeals SC/717/2016, SC/719/2016 and SC/739/2016 have rendered Appeal NO. CA/OW/190/2016 spent or academic.

Also brought up by the respondents in the preliminary Objections is that grounds 2 and 5 are founded on an obiter dictum which cannot found a basis for a proper ground of appeal as appeals have to do with the ratio decidendi of the judgment or ruling and not a side comment. Indeed, it is easy to dismiss a ground of appeal as not based on the ratio decidendi off hand as on the face of it could resemble a by the-way comment but it is not so simply done and off handily too as this Court had well shown in earlier decisions and in this I shall take solace in the case of Abe v University of Ilorin & Anor (2013) LPELR – 20643 SC where it stated thus:-
“It is instructive to note that respondents’ preliminary objection rests largely on Order 8 Rule 2 (3) and (4) of the Rules of this Court the effect of non-compliance with which the Court restated inter-alia in Iliya Akwai Lagga v Audu Yusuf Sarhuna (2008) 5-7 SC (Pt.11) 123.
By these rules, vague grounds of appeal which respondents herein submit appellant’s grounds 1, 4 and 8 are, this Court has repeatedly held, grounds which are imprecise, inaccurate, large, verbose and of

inexact meaning. The fact that Order 8 Rule 2 (3) and (4) of the Rules of this Court requires grounds of appeal to be precise and accurate, the Court has further held, does not entitle it to adjudge an appellants slightest infraction in that regard as rendering the particular grounds incompetent. The rules of Court, the Court insists only requires the appellant to give the respondent and indeed the Court sufficient notice and information of the complaints the grounds convey.
The rules, therefore, see Aderounmu v Olowu (2000) 4 NWLR (pt.652) 253 and Hambe v Hueze (2001) 4 NWLR (pt.703) 372, are primarily designed to ensure fairness to both sides in the appeal and never meant to facilitate reliance on them by the Court to shut out an intending appellant. Once, therefore, a ground of appeal contains the reasons on the basis of which the appellant wants the appellate Court to decide that the judgment appealed against is wrong, the ground cannot be discountenanced. Such a ground that has isolated and accentuated, for attack, the basis of the reasoning being challenged is competent. See The Minister of Petroleum and Mineral Resources & Anor v

Expo-shipping Line (Nig.) Ltd NSCQLR Volume 42 (2011) 1020 and The Military Administrator of Benue State & 7 Ors v O. P. Ulegede Esq. & Anor NSCQLR (2001) 110.” Per MUHAMMAD, JSC (EMPHASIS SUPPLIED).
Specifically with reference to grounds 2 and 5 being obiter dicta and not arising from the ratio decidendi as propounded by the objectors, Nweze JSC stated in Omisore v Aregbesola & Ors (2015) LPELR – 24803 (SC) as follows:-
“In legal theory, an obiter dictum, in contradistinction to the ratio decidendi of a case, is a judge’s passing remarks which do not reflect the reasoning of the Court or ground upon which a case is decided.”
Also in the case of Miss Nkiru Amobi v Mrs Grace O. Nzegwu & Ors (2013) LPELR – 21863 (SC), this Court, per Kekere-Ekun, JSC opined as follows:-
“The ratio decidendi means “The reason for deciding” or the reasoning, principle or ground upon which a case is decided. The legal principle formulated by the Court, which is necessary in the determination of the issues raised in the case. An obiter dictum is a statement made in passing which does not reflect the reasoning of the Court or ground upon

which a case is decided. In the instant case, it is quite evident from the pleadings of the parties that the issue for determination before the trial Court was who as between the parties was entitled to the grant of letters of Administration in respect of the estate of the deceased. There were no divorce proceedings or criminal charge pending before the Court. The ratio decidendi of the judgment of the trial Court, which was affirmed by the Court of Appeal was that the appellant herein was not entitled to the relief sought as she was not the lawful wife of the deceased intestate at the time of his death. The opinion and subsequent directive of the Court regarding the charge, prosecution and conviction of the appellant for the offence of bigamy were therefore not based on the pleadings or any other issue in contention between the parties. The learned trial judge clearly went outside the case before him in this regard. The remarks constitute obiter dicta and cannot form the basis of any appeal.”
Similarly, in the case of Balonwu & Ors v Governor of Anambra State & Ors (2009) LPELR – 729 (SC) this Court per Muhammed, JSC, at pp.24-25

while determining whether the statement made obiter by the Court of Appeal in its lead judgment is a sufficient ground of appeal had this to say:-
“While it is the stand of the appellants as reflected in paragraph (a) of the particulars of the ground of appeal and in their arguments opposing the preliminary objection that the comments of the learned justice of the Court of Appeal is part of the decision of the Court below which occasioned a miscarriage of justice, the 1st and 2nd – 30th respondents saw nothing in these derogatory comments or remarks than a mere obiter dicta which by law is not appealable. Although, on a close examination of the remarks or comments made by the learned justices of the Court below which were made the subject of this first ground of appeal show that they are highly uncomplimentary touching on the integrity and honesty of the learned senior counsel to the appellants, all the same, “these comments or remarks to me were merely passing remarks not against the appellants who were parties to the appeal but against their learned senior counsel who is not a party to the appeal. Therefore, it is difficult to see how remarks on the learned senior counsel could

constitute a decision to support a ground of appeal within the meaning of Section 318 (1) of the 1999 Constitution. The law is quite clear that a ground of appeal must constitute a complaint against the decision of the Court. In other words, an appeal is usually against the ratio decidendi of the judgment of a lower Court and not in respect of an obiter dicta made by the Court in the course of the said judgment, except to be deemed to have radically influenced the ratio, the obiter dicta is so clearly linked with the ratio decidendi. See Saude v Abdullahi (1989) 4 NWLR (Pt.116) P.387 In the present case the derogatory remarks of the learned justice of the Court below has no link whatsoever to the appellants case in which the appellants were seeking elongation of their tenure as members of the Anambra State House of Assembly….”
Being well guided by the road map of this Court as well displayed in those excerpts of my learned brothers in the cases above referred to, there is no gainsaying that these preliminary objections are clouding the space for the Court to see its way to the dispute before it which however

looked are clearly well stated, errors of law being complained of and the particulars are mere dressings which cannot take the place of the substance of what is before the Court. Therefore the earlier the spring cleaning is done so as to get on with the job at hand the better and so I hereby dismiss the Preliminary Objection of the 1st respondent and in doing so, those of 2nd, 3rd and 4th would follow suit are dismissed.

I shall make use of the issues distilled by the respondent for ease of reference since they encompass all concerns of the other counsel.
ISSUES (a) & (b):
(a) Whether the Court of Appeal was right in declining jurisdiction to hear the appellant’s appeal on the ground that the subject matter of the appeal had been determined by the Supreme Court in the consolidated appeals NOS. SC/717/2016, SC/719/2016 and SC/739/2016 and the appeal had become academic and spent.
(b) Whether the failure of the Court of Appeal to decide the substantive appeal on the merit in the alternative, occasioned a miscarriage of justice to the appellant.

A. C. Ozioko Esq., learned counsel for the appellant contended that this action that inures in favour

of both the appellant and the 4th respondent herein and based on the said adjudged independent and separate rights of action held that there “was no abuse of Court process by the said 4th respondent’s subsequent suit and dismissed the appeal. That this Court did not in the course of the determination of SC.739/2016 take away the right of the appellant herein to pursue his pending appeal for the determination of his own separate suit pending at the Court of Appeal, Owerri i.e. CA/OW/190/2016 which was earlier stayed to enable this Court determine SC/739/2016. That this Court in agreement with the Court of Appeal, Abuja dismissed the case of the 4th respondent herein in SC.717/2016 on the ground that he failed to prove his claim that 3rd respondent did not pay his income tax as and when due.

Learned counsel further stated for the appellant that the Court below failing to consider and determine his appeal from the Federal High Court’s judgment amounted to a denial of fair hearing to the appellant. He cited Section 240 and 241 of the 1999 Constitution as amended; Pam & Anor v Nasiru Mohammed & Anor (2008) 16 NWLR (Pt.1112) 1 at 48.

That the decision of the lower Court is at variance with the decisions of this Court in the consolidated cases of SC/717/2016, SC/719/2016 and SC/739/2016.

Mr. Ozioko of counsel contended that the Court below erred in not considering the merit of the appeal before them after ruling on the issue of jurisdiction so that in the event the Supreme Court ruled the matter of jurisdiction differently it would enter properly into the appeal on the substantive matter. He referred to Obiuweubi v CBN (2011) 2 – 3 SC (pt.1) 46; Olori Motors Company Limited & Ors v Union Bank of Nigeria Plc (2006) 4 SCNJ 1.

He urged the Court to invoke Section 22 of the Supreme Court Act and rehear the case in whole or in part as the justice of the case demands. He relied on Obiyan v Military Governor. Mid-West & Ors (1972}) LPELR -2186 (SC); Leaders of Company Ltd v Musa Bamaiyi (2010) 18 NWLR (Pt.1228) 329; Inakoju v Adeleke (2008) 30 WRN 1 at 136.

Responding, learned Senior Advocate, Livy Uzoukwu stated that an appeal is a continuation of hearing and a party is under an obligation to be consistent in presenting his case from the trial Court to the appellate Court.

That a party is not at liberty to change his case or direction like the windsock. He cited Ajide v Kelani (1985) 3 NWLR (pt.12) 248 at 269.

Learned senior counsel stated that this appeal does not entitle the appellant to engage in a legal spin dance in an effort to resile from his case and evade the copious findings in the consolidated appeals made by this Court as the appellant is bound by his case and the findings made by the Apex Court in the consolidated appeals and therefore the consequence is that Appeal NO. CA/OW/190/2016 is spent and now academic and the Court below right to decline jurisdiction to entertain the appeal. He cited Abacha v Fawehinmi (2006) 6 NWLR (Pt.600) 288 at 317.

That this is not a proper case for the invocation of Section 22 of the Supreme Court Act, he relied on NURTW & Anor v RTEAN & Ors (2012) LPELR – 7840 (SC) etc.

For the 2nd respondent, learned Senior Counsel, contended that the consolidated appeals NO.SC/717/2016, SC/719/2016 and SC/739/2016 referred to in the appellants brief of argument originated from a single judgment of the Court of Appeal NO.CA/A/390/2016 delivered

on 18/8/2016 now reported as Dr. Okezie Victor Ikpeazu v Sampson Uchechukwu Ogah, PDP v INEC and Sir Friday Anozie Nwosu (2017) 6 NWLR (Pt.1562) 439 wherein appellant herein was the 4th respondent in that appeal. Also that the said judgment is a product of an appeal from the judgment of the Federal High Court, Abuja in Suit No.FHC/ABJ/CS/71/2016 in which the appellant herein was the 4th defendant. That the appellant herein, as a party to the suit instituted by the 4th respondent herein is bound by the ultimate outcome of the litigation, both at the trial and appellate Courts. He citedOlawoye v Jimoh (2013) 13 NWLR (Pt.1371) 362 at 383 per Ariwoola, JSC.

It was further submitted by learned Senior Advocate that the failure of the Court below to render a decision on the substantive appeal in the alternative does not invalidate its decision on its lack of jurisdiction, if it is correct. That the first condition precedent to the exercise of the general powers of this Court under Section 22 of the Supreme Court Act does not exist and so the Court should decline the invitation to so use the power.

Chief Theo Nkire of counsel for the 3rd respondent stated that by the doctrine of “stare decisis” or judicial precedent” every Court including the Court of Appeal is bound not only to abide by but also always enforce a decision of the Supreme Court, particularly in the instant case where the parties, facts, issues and subject are the same. He relied on Section 287 (1) of 1999 Constitution as amended; Section 8 Supreme Court Act; Mohammed v Olawunmi (1994) 4 NWLR (Pt. 287) 384.

He submitted further that neither the Court of Appeal nor the Supreme Court has jurisdiction to give advisory opinion or deal with a matter that has become academic or speculative even if such opinion could be useful as the Courts deal only with live issues. He cited Akeredolu v Akinremi (1986) 2 NWLR (Pt.25) 710 at 725.

It was further contended by learned counsel for the 3rd respondent that there was no need to enter into the substantive matter after the Court below found that the case is based on same parties, facts, issues and subject matter as Suit No. FHC/ABJ/CA/171/2016 which gave rise to appeal NOS.SC/739/2016; SC/717/2016 and SC/371/2016, was determination of the appeal on the merits since the Court

of Appeal rightly came to the conclusion that the same parties, facts, issues and subject matter are the same as the aforestated appears already decided by the Supreme Court on 12/5/2017. He cited Jadesimi v Okotie-Eboh (1986) 1 NWLR (Pt.16) 264 at 225; Okorocha v PDP (2014) 7 NWLR (Pt.1406) 213 at 279-280.

Learned counsel for the 4th respondent submitted that what was before the Court below for hearing on the 18/7/2017 was a Motion on Notice challenging the jurisdiction of the Court and not the appeal itself. Therefore was no ground for the Appeal Court delving into the merits of the appeal. That the judgments of the Supreme Court in SC/717/2016, SC/719/2016 and SSC/739/2016 are judgments in rem and bind all persons whether party to the proceedings or not and so since the issue of qualification of the 3rd respondent was determined in those decisions of the Supreme Court, the issue became conclusive against the entire would and cannot be revisited and so nothing could be gained in the Court below going into the said matter under another guise. He cited Ogboru v Uduaghan (2011) 17 NWLR (Pt.1277) 727; 764; Okpalugo v Adeshoye (1996) 10 NWLR (ft.476) 77 etc.

In summary, the appellant’s stance upon which he has brought this appeal which this Court is as at now considering its determination as to which side of the divide rests the justice of the matter and it is as follows:-
(a) That the decision of this Honourable Court in SC.739/2016 emphasised that the appellant had a separate and independent right of action from that of the 4th respondent and held “that there was no abuse of court process by the said 4th respondent’s subsequent suit
(b) That this Honourable Court did not in the course of determination of SC/739/2016 take away the right of the appellant herein to pursue his pending appeal for the determination of his own separate suit pending at Court of Appeal Owerri i.e. CA/OW/190/2016.
(c) That this Honourabte Courts decision in SC.717/2016 the appeal filed by the 4th respondent herein, was to the effect that the 4th respondent failed to prove noncompliance with tax payment requirement as outlined in the reported cases of Lanto v Wowo (1999) 7 NWLR (pt.610) 227,230 and UKACHUKWU v PDP (2014) 17 NWLR (Pt.1435)194, 202 as against the appellants

supplied present case which “is not failure to pay tax as and when due but on the false information supplied by the 3rd respondent on the documents he presented to INEC i.e. FORM CF001 and other documents attached such as the 3rd respondent’s Tax Clearance Certificate, 2011 and 2013 P.A.Y.E income Tax Receipts.
(d) That what the lower Court “ought to have done was to hear and determine the appeal one way or the other relying on the Supreme Courts judgment on the consolidated appeals if they found some fitting as precedents or at worst dismiss the Appellants appeal if the Court below considered the facts and issues similar.

The stance of the 2nd respondent which mirrors the same position as the other respondents is that the ultimate outcome of the litigation in which the appellant was a party is discernible from the decision of this Court in SC.717/2016, SC.719/2016 and SC.739/2016, consolidated appeals and the excerpts of this Court being thus:-
(i) “…The application of Section 31(6) of the Electoral Act 2010 as amended arises only sequel to the determination by a Court that the 1st respondent has

to INEC, the 3rd respondent, any false information either in his affidavit or any other document submitted to the latter for the purpose of being a candidate in the 2015 Abia State governorship election. Consequent upon appellant’s failure to establish any false information contained in the affidavit or any document in relation to the payment of his tax submitted by the 3rd respondent the lower Court is right, having found the trial Court’s finding to the contrary and the grant to the appellant the reliefs he is not entitled to perverse, to have set aside the unjust finding and unmerited reliefs.” per Muhammad, JSC, in SC/717/2016;
(ii) …By the assertion that the documents submitted are false, there is an inherent allegation of dishonesty. It is implied that the documents submitted were concocted or that the originals were altered for the purpose of allowing the 1st respondent to contest the election under false pretences….In other words, a crime is being imputed to the 1st respondent,….alleged irregularities on the documents submitted does not amount to proof that the documents are false. Being documents issued by the ABIA State Internal Revenue

Service, by virtue of Section 84(2) of the Personal Income Tax Act (PITA), the verification of the genuineness of any tax transaction is vested in the authority….”per KEKERE-EKUN, JSC in SC.717/2016;
In SC.739/2016, Muhammad JSC stated as follows:-
(iii) “… Appellant failed to establish that the 1st respondent did not pay the tax he declared in form CF001 exhibits D to have duly paid as contained in exhibits A, B and C – Tax Receipts and Clearance Certificates respectively..”
Onnoghen, CJN in SC.717/2016 stated as follows:-
(iv) “.. It is apparent that appellant’s claim is on all fours as the claim pursued separately by the appellant in appeal No. SC.717/2016 by virtue of the latter’s amended originating summons dated 2nd October 2015 but filed on 9th October in Suit No. FHC/ABJ/CS/71/2016…
Both appeals, however emanate from the same decision of the lower Court in respect of the appeal filed thereat by the 3rd respondent herein against the trial Court’s judgment in Suit No. FHC/ABJ/CS/71/2016i filed subsequent to the one initiated by the appellant herein…”

A clarification of the journey before the consolidated appeals

aforesaid in the Supreme Court came about is that the appellant herein had set out and applied to join the 4th respondent’s suit at the Federal High Court, Abuja and therein raised the issue of abuse of Court process. It was applied that to the Supreme Court during the pendency of the consolidated appeals to stay proceedings in his own appeal at the Court below in CA/OW/190/2016 and transfer the appeal to the Supreme Court to be further consolidated with the consolidated appeals. In making those applications and in opposing another application to dismiss his appeal at the Court below the appellant deposed to an affidavit averring that the parties and subject matter of his case and that of the 4th respondent were the same and in a somersault deposed that they were not the same respectively.
The Court of Appeal referred to the affidavits of the appellant in the ruling, subject of this appeal and came to the conclusion that the appellants appeal at the Court below had become spent and academic. I shall quote for effect what the Court below said in rendering its decision and that is as follows:-
“In the instant application, the deposition by

the appellant that the Appeal No. CA/OW/190/2016 and SC/739/2016 are between the same parties and in respect of the same subject matter are deemed as true, unchallenged and undisputed. For the appellant to now say in the current affidavit that the facts are not the same is not acceptable.
He cannot approbate and reprobate at the same time. When the situation favoured him, he swore to an affidavit that the facts are same, and when the situation becomes unfavourable, he now said that the facts are not the same.”
What the Court below did is to underscore the policy stance of this Court and I dare say what the Courts of the land irrespective of cadre or jurisdiction should maintain and that is, that a party should be consistent in stating his case and consistent in proving it. He is not permitted to take a position in his pleadings or affidavit deposition only to change his position at the trial and then at the Appeal Court take another stance and at the Supreme Court revert to the original position. The administration of justice and its operations are not akin to an artful dodger manoeuverings and nothing should be allowed to impede the Court getting to the Truth of the

Matter. See Ajide v Kelani (1985) 3 NWLR (Pt.12) 269.
That situation which this Court will have none of is what the appellant is seeking to take this Court through to get an advantage even though in the quest that would get this Court setting aside a decision it had earlier made on the same subject matter or stated differently to reach a decision violently opposed to what it earlier well considered and decided on the same res and same contending parties. The resultant effect would clearly be a charade with the Apex at the centre of a ridiculing spectacle in the revisiting of the question of the 3rd respondent’s alleged submission of false tax documents to the 2nd respondent which had been determined in a suit/appeal involving all the parties in the present suit. The saving grace before this Court right now is the affirmation of the decision of the Court of Appeal and that is that the appeal before it had become academic and spent. Indeed the Oxford Advanced Learners Dictionary, 7th Edition defines “academic as …not connected to a real or practical situation and therefore important.” Also supportive of my stance are the cases of A.G. Anambra State

v A.G. Federation (2005) 9 NWLR (Pt. 931) 572 at 610; Plateau State v A. G. Federation (2006) 3 NWLR (Pt.967) 346 at 419.
Indeed the Court of Appeal was right as pointed by learned senior counsel for 1st respondent that it had no jurisdiction to entertain Appeal No. CA/OW/190/2016 and so when that Court below struck out the appeal for that lack of competence, it rendered the present invocation for the Supreme Court’s application of Section 22 of the Supreme Court Act a futile cry. The reason is that by Section 233 of the 1999 Constitution, the Supreme Court shall have jurisdiction to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Court of Appeal. Therefore in so far as the Court of Appeal did not deal with the merit of the appeal, this Court cannot take the appeal from what took place at the trial Court as Section 233(1) of the Constitution had that forbidden. This scenario is well captured in numerous decisions of this Court, viz:- Ugwu v The State (2013) LPELR-20177 (SC); Bisiriyu Akinlagun & Ors v Taiwo Oshoboja & Anor (2006) 12 NWLR (Pt.993) 60; Guobadia v The State

(2004) 6 NWLR (Pt.869) 360; Harriman v Harriman (1987) 3 NWLR .(Pt.60) 244 at 217; Ibori v Agbi (2004) 6 NWLR (Pt.868)78 at 143.

There is no point belabouring a rested matter and that is that a resuscitation of a dead case is just not funny which is what this appeal is and in the light of that and the better reasoning in the lead judgment, I hold this appeal as lacking in merit and I dismiss it. I abide by the consequential orders made.

AMIRU SANUSI, J.S.C.: Having perused the judgment just rendered by my learned brother A.A. Augie, JSC. I find myself at one with her reasoning and conclusion that this appeal lacks merit and should be dismissed. I accordingly do same in view of my resolve to go a long with the reasoning and conclusion arrived at in the Leading Judgment. I have nothing more to add. I abide by the order on costs made.

SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Amina Adamu Augie, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. The appeal lacks merit and it is accordingly dismissed by me.

I abide by all the orders contained in the lead judgment.

Appearances:

C. Ozioko, Esq. with him, O. E. Otoko, Esq., Queenette Nwanne, Esq., Ben N. Ukandu. Esq. and A.O. Iyeri, Esq. For Appellant(s)

Dr. Livy Uzoukwu , SAN with him, J.U.K. Igwe (SAN), Dr. Paul Ananaba (SAN), Prof. Ernest Ojukwu (SAN), Chinedu Nwankwo, Esq. for the 1st Respondent.

Asiwaju Adegboyega Awomolo, SAN and J.T.U. Nnodum, SAN with them, Alhassan A. Umar, Esq., lfeoma Ndukwe, Esq. and Akinyosoye Arosanyin, Esq. for the 2nd Respondent.

Chief Theo Nkire, Esq. with him, C. C. Eleke, Esq., Anaga Katu, Esq., Emeka Eze, Esq. and Chikaodi Okeorji, Esq. for 3rd Respondent.

Prisca Ozoitesike, Esq. with him, Chijioke Udeogu, Esq. and D. Ozurumba, Esq. for 4th Respondent. For Respondent(s)

Appearances

C. Ozioko, Esq. with him, O. E. Otoko, Esq., Queenette Nwanne, Esq., Ben N. Ukandu. Esq. and A.O. Iyeri, Esq. For Appellant

AND

Dr. Livy Uzoukwu , SAN with him, J.U.K. Igwe (SAN), Dr. PauI Ananaba (SAN), Prof. Ernest Ojukwu (SAN), Chinedu Nwankwo, Esq. for the 1st Respondent.

Asiwaju Adegboyega Awomolo, SAN and J.T.U. Nnodum, SAN with them, Alhassan A. Umar, Esq., lfeoma Ndukwe, Esq. and Akinyosoye Arosanyin, Esq. for the 2nd Respondent.

Chief Theo Nkire, Esq. with him, C. C. Eleke, Esq., Anaga Katu, Esq., Emeka Eze, Esq. and Chikaodi Okeorji, Esq. for 3rd Respondent.

Prisca Ozoitesike, Esq. with him, Chijioke Udeogu, Esq. and D. Ozurumba, Esq. for 4th Respondent. For Respondent