HONOURABLE JOEL DANLAMI IKENYA v. HON. EMMANUEL BWACHA ORS.
(2011)LCN/4322(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of February, 2011
CA/A/158/M/2007
RATIO
COURT’S JURISDICTION : WHAT DETERMINES THE JURISDICTION OF A COURT
It is trite that it is the Plaintiffs claim which determines the Jurisdiction of a Court. PER JIMI OLUKAYODE BADA, J.C.A
WHETHER THE JURISDICTION OF AN ELECTION TRIBUNAL DOES NOT EXTEND TO THE EXCLUSIVE POWER TO CONDUCT ALL TRIALS IN RESPECT OF ELECTIONS NOR DOES IT CONFER ITS AUTHORITY TO HANDLE PRELIMINARY ISSUES OR MATTER THAT TAKE PLACE BEFORE ELECTIONS
In Jang vs. Dariye (2004) FWLR part 412 at 432 Paragraph A it was held among others that-
“The above view is in line with the interpretation given to similar provision on election matters where the view has repeatedly been expressed that an Election Tribunal is only given exclusive power to hear Election Petitioners and that its said power does not extend to power to conduct all trials in respect of elections nor does it confer its authority to handle preliminary issues or matter that take place before elections are held. See – Doukpolagha vs. George (1992) 4 NWLR Part 236 Page 444; – Enagi vs. Inuwa (1992) 3 NWLR Part 231 Page 548” Also in the case of:– Amaechi vs. INEC (2008) 5 Part 1080 Page 222 the Supreme Court held as follows:- “In the same way Section 285(2) relied upon by Senior Counsel cannot he construed to destroy the Jurisdiction which the ordinary Courts in Nigeria have in pre-election matters were the Courts to construe Section 285(2) as having the effect of ousting the Jurisdiction of the ordinary Court in pre-election matters, all that a Defendant would need to do to frustrate a Plaintiff is to stall for time and obtain adjournment to ensure that a plaintiff’s case is killed once an election is held.”…… The Supreme Court held further:- “It is my firm view that the Jurisdiction of the ordinary Courts to adjudicate in pre-election matters remains intact and unimpaired by Section 178(2) and 285(2) of the 1999 Constitution.” Consequent upon the foregoing, it is my view that Section 285(1)(a) of the 1999 Constitution, Sections 69, 76(1) and (2), 140(1) of Electoral Act 2006 relied upon by counsel for the Appellant will not be relevant to the claim. The ordinary Courts still have the Jurisdiction to entertain pre-election and intra party matters. PER JIMI OLUKAYODE BADA, J.C.A
ABUSE OF COURT PROCESS: WHAT CONSTITUTES ABUSE OF COURT
It is settled that where two suits are pending between the same parties and arise out the same subject matter and are actions in which common questions of law and facts arise or the alleged right to relief are in respect of or arise out of the same transaction or series of transactions as in this case, the suit filed later in time would be vexatious and constitute an abuse of process.
Furthermore, where matters involving the same issues are raised contemporaneously in two different Courts, it is desirable and clearly in the interest of Justice that these matters should be heard in only one of these two Courts. The rule is designed to avoid multiplicity of proceedings. The basis of the rule is the real possibility of two conflicting decisions in respect of one and the same subject matter. In such a situation, it is desirable that the issues common to both matters are tried in only one Court. In this case the filing of Suit No-FHC/ABJ/M/304/07 which resulted in this present appeal No CA/A/158/M/2007 amounted to an abuse of Court process and if allowed to go on while Appeal No. CA/K/127/M/2007 is also in progress there is the real possibility of two conflicting judgments with litigants at liberty to accept the judgment favourable to them. My view above is fortified by the decision of the Supreme Court in:- – Ashley Agwasim & Another vs. David Ojichie & Another (Supra), where it was held among others that- “A litigant has no right to pursue pari passu two processes in two Courts at the same time with a view to obtaining victory in one of the processes or in both. Litigation is not a game of chess, where players outsmart themselves by dexterity of purpose and traps. On the contrary litigation is a contest by Judicial process where the parties place on the table of Justice their different positions clearly, plainly and without tricks. In my humble view the two processes were in law not available to the Appellant simultaneously. Only one was available and the choice of which of these two was exclusively Appellants…” See also the following cases:– The Holy Chapel of Miracles vs. Madam Akon Iyoha and Another (Supra); – Great Ogboru vs. James Ibori and 27 Others (Supra). PER JIMI OLUKAYODE BADA, J.C.A
ABUSE OF COURT PROCESS: CONSEQUENCE OF ABUSE OF COURT PROCESS
It is my view that once a Court is satisfied that any proceeding before it is an abuse of court process it has the power indeed the duty to either stay, strike out or dismiss it to invoke its coercive power to punish the party which is in abuse of its process. Quite often, the power is exercisable by a dismissal of the action which constitutes the abuse. See the following cases:- – Onyeabuchi vs. INEC Abuja (2002) 8 NWLR Part 769 Page 417; – Arubo vs. Aiyeleru (1993) 3 NWLR Part 280 Page 126: – Okorodudu vs. Okoromadu (1977) 11 NSCC Page 105. PER JIMI OLUKAYODE BADA, J.C.A
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
HONOURABLE JOEL DANLAMI IKENYA Appellant(s)
AND
1. HON. EMMANUEL BWACHA
2. PEOPLE’S DEMOCRATIC PARTY
3. CHAIRMAN INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
JIMI OLUKAYODE BADA, J.C.A: (Delivering the leading Judgment): This is an appeal against the Judgment of the Federal High Court Abuja in Suit No:- FHC/ABJ/M/304/2007 delivered on 17th May 2007.
The 1st and 2nd Applicants who are now 1st and 2nd Respondents commenced an action at the lower court against the 1st, 2nd and 3rd Respondents who are now 3rd and 4th Respondents and Appellant in this Court. They asked for the following orders:-
“(a) An order of mandamus compelling 1st and 2nd Respondents to declare the 1st Applicant as the 2nd Applicant’s candidate for the Southern Senatorial District of Taraba State and consequently the winner of the 21st April 2007 Senatorial Election for the said Southern Senatorial District of Taraba State, the 2nd Applicant having won the said election.
(b) A declaration that the 2nd Applicant’s expulsion of 3rd Respondent from 2nd Applicant’s party is valid and subsisting and extinguishes any claim or right thereto accruing to the said 3rd Respondent. The 1st and 2nd Respondents are estopped from relying on any doubt as to the 2nd Applicant’s choice in the Southern Senatorial District of Taraba State.”
At the hearing in the lower Court the Appellant filed a motion urging the Court to strike out the originating motion of the Respondents.
The lower Court consequently ordered the parties to file written addresses on both the substantive suit and the preliminary objection.
The written addresses of all the parties to the suit were adopted by them and Judgment was delivered in favour of the 1st and 2nd Applicants i.e. 1st and 2nd Respondents.
Dissatisfied with the said Judgment of the lower Court, the 3rd Respondent now Appellant appealed to this Court.
The learned Counsel for the Appellant formulated two issues for determination set out as follows:-
“(1) Whether the learned trial Judge had jurisdiction to make orders of mandamus in an election matter in view of the provisions of Section 285 of the 1999 Constitution of the Federal Republic of Nigeria and Sections 69, 76 and 140 of the Electoral Act 2006.
(2) Whether the entire mandamus proceedings at the trial Court were not an abuse of Court process in view of Appeal No. CA/K/127/M/2007 filed by the Applicants and pending before the Court of Appeal Kaduna.”
The learned Senior Counsel for the 1st and 2nd Respondents on the other hand also formulated two issues for determination, they are set out as follows:-
“(1) Whether from the facts and circumstances of this case, the trial Court has the jurisdiction granting the order of mandamus claimed by the 1st and 2nd Respondents.
(2) Whether the entire mandamus proceedings before the trial Court constituted an abuse of Court process.”
At the hearing, the learned Counsel for the Appellant referred to the Appellant’s brief of argument filed on 27/11/2007 and the reply brief filed on 30/11/2010. He adopted the said Appellant’s brief of argument and the Appellant’s reply brief of argument deemed filed on 30/11/2007 as his argument in this appeal. He finally urged that the appeal be allowed.
The learned Counsel for the 1st and 2nd Respondents referred to the 1st and 2nd Respondents’ brief filed on 1/2/08. He adopted the said brief of argument as his argument in this appeal. He went further that the Appellant did not raise the issue of his expulsion at the lower Court.
He argued that the Appellant’s reply brief of argument be discountenanced because the Appellant tried to re-argue the appeal all over again. He then urged that the appeal be dismissed.
Even though the 3rd and 4th Respondents were served with hearing notices that this appeal would come up for hearing on 30/11/2010 they failed to appear in Court to defend this appeal.
The issues formulated by Counsel on behalf of the parties are similar.
However, the issues as set out by the Appellant are considered relevant and apt to determine this appeal.
The Appellant did not formulate any issue upon the 3rd ground of appeal and the only ground contained in the notice of appeal filed on 25/5/07. The said grounds are deemed abandoned and they are hereby struck out.
ISSUE No.1
Whether the learned trial Judge had jurisdiction to make orders of mandamus in an election matter in view of the provisions of Section 285 of the 1999 Constitution of the Federal Republic of Nigeria and Sections 69, 76 and 140 of the Electoral Act 2006.
The learned Counsel for the Appellant submitted that the trial Judge had no Jurisdiction to make the mandamus orders he made or any order save an order striking out the case for want of Jurisdiction. This according to him is because the combined provisions of Sections 69, 76 and 140 of the Electoral Act 2006 and Section 285 of the 1999 Constitution of the Federal Republic of Nigeria clearly and unambiguously deny the Court Jurisdiction.
It was further submitted that no Court has Jurisdiction to try election matters unless it is an Electoral Tribunal.
He submitted that where enactments are clear and unambiguous, the Court must give them their natural and literal meaning. He relied on the following cases:-
– First Bank of Nig. Ltd vs. Moses Onyema Njoku (1985) 3 NWLR Part
384 at 457 at 479-480;
– Adesina Oke & Another vs. Shittu Atoloye & 3 Others (1985) 2 NWLR Part 9 Page 578 at 587;
– Savannah Bank vs. Ajilo (1987) 2 NWLR Part 57 Page 421 at 429.
He also submitted that the sections of the Electoral Act 2006 and that of the 1999 constitution of the Federal Republic of Nigeria referred to above oust the Jurisdiction of the general Courts.
He referred to the case of:-
– Ajao Lateef Abimbola vs. Adeloju & Others (1999) 5 NWLR part 601 Page 100 at 111.
He referred to the relief sought and granted by the lower court and submitted that the orders granted impugn on Section 285 of the 1999 Constitution and Sections 69, 76 and 140 of the Electoral Act. In effect he stated that the lower court lacked Jurisdiction to entertain the matter. He submitted that where a Court lacked Jurisdiction, the proceedings however well conducted are a nullity.
He referred to the following cases:-
– Western Steel Works Ltd. vs. Iron & Steel Workers Union (1986) 3 NWLR Part 30 Page 617 at 625;
– Onyema vs. Oputa (1987) 3 NWLR part 60 Page 259 at 293;
– Alao vs. Commissioner of Police (1987) 4 NWLR part 64 at 199;
– Unuakhuni vs. The State (1985) 3 NWLR Page 364;
– Utih vs. Onoynwe (1991) 1 NWLR Part 166 Page 166 at 225;
– Madukolu vs. Nkemdilim (1962) NSCC Vol. 2 Page 374;
– Rossek vs. A.G.B. Ltd. (1993) 8 NWLR Part 312 Page 382 at 437-8;
– NEC vs. Agboh (1992) 4 NWLR Part 236 Page 345 at 442;
– Okoye vs. Nigerian Const. & Furniture Co. Ltd (1991) 6 NWLR part
199 Page 501 at 528;
– A.G. Anambra State vs. A.G. Federation (1993) 6 NWLR part 302 at
692 at Page 737.
In his response, the Learned Senior Counsel for the 1st and 2nd Respondents submitted that the lower court has Jurisdiction to grant the reliefs claimed by 1st and 2nd Respondents.
He referred to Section 285(1) (a) of the 1999 Constitution, Sections 69, 76 (1) & (2) and 140(1) of the Electoral Act 2006. He also referred to the affidavit in support of the Originating Summons.
Learned senior counsel for the 1st and 2nd Respondents then submitted that in view of the averments in the affidavit in support of the originating
Summons, Section 285 (1) (a) of the 1999 Constitution, Sections 69, 76 and 140 of the Electoral Act 2006 are inapplicable to the suit at the lower court.
He went further in his submission that the argument of the learned Counsel for the Appellant could have been relevant if the suit was on whether any person had been validly elected as a member of the National Assembly.
It was also submitted on behalf of the 1st and 2nd Respondents that the provisions of sections 69, 76 and 140 of the Electoral Act 2006 and Section 285(1) (a) of the 1999 Constitution are very clear and devoid of any ambiguity. And where provisions of statutes are clear they should be given their plain and ordinary meaning.
He relied on the following cases:-
– NNPC vs. Amadi (2000) 10 NWLR Part 674 Page 76 at 107 Paragraphs E-F, 109 Paragraphs A-B;
– A.G. Ondo vs. A.G. Federation (2002) 9 NWLR Part 772 Page 222 at 418 Paragraphs D-F.
The Learned Senior Counsel for the 1st and 2nd Respondents argued that the reliefs sought were predicated on intra party matter which pre-date the said Election. He went further that as at the date when the action was filed, no Certificate of Return was issued to anybody as a returned Candidate.
He relied on the following cases:-
– Jang vs. Dariye (2004) FWLR Page 412 at 432 Paragraphs A-B;
– Rt. Hon. Rotimi Amaechi vs. INEC and 2 Others (2008) 5 NWLR Part 1080 Page 227.
He finally urged that this issue be resolved in favour of the 1st and 2nd Respondents.
In his reply brief of argument the learned Counsel for the Appellant submitted that the trial Court had no jurisdiction to make the mandamus order at the time the action was brought before it in view of the provisions of Section 285 of the 1999 Constitution, Sections 69, 76 and 140 of the Electoral Act 2006.
In this case it is of common knowledge that there was a General Election in Nigeria on 21st April 2007, and Election for the Southern Senatorial District of Taraba State was among the positions contested for in the said election.
The Originating Motion set out earlier in this judgment which led to this appeal was filed at the lower Court on 30th day of April 2007 i.e. after the conduct and declaration of results in the said election.
The contention of the Appellant is that the trial Court lacked the Jurisdiction to grant the reliefs claimed by the 1st and 2nd Respondents because by virtue of Section 285 (1) (a) of the 1999 Constitution, Sections 69, 76 and 140 of the Electoral Act 2006, the suit relates to election matter which only an Election Tribunal has Jurisdiction to entertain.
The sections of the law relied upon by the Appellant are:-
– Section 285 (1) (a) of the 1999 Constitution of the Federal Republic of Nigeria.
– Sections 69, 76 and 140 of the Electoral Act 2006.
Section 285 (1) (a) of the 1999 Constitution states as follows:-
“285(1) There shall be established for the Federation one or more election tribunals to be known as the National Assembly Election Tribunals which shall, to the exclusion of any Court or Tribunal, have original jurisdiction to hear and determine petitions as to whether-
(a) Any person has been validly elected as a member of the National Assembly”
Sections 69 of the Electoral Act 2006 states as follows:-
“69. The decision of the returning officer on any question arising from or relating to:-
(a) Unmarked ballot paper
(b) Rejected ballot paper, and
(c) Declaration of scores of candidates and the return candidate, shall he final subject to review by a tribunal Court in an election proceedings under this Act.”
Sections 76 (1) & (2) of the Electoral Act 2006 also states as follows:-
“76(1) A sealed certificate of return at an election in a prescribed form shall be issued within 7 days to every candidate who has won an election under this Act, provided that when the Court of Appeal or the Supreme Court being the final Appellate Court in any election petition as the case may be nullifies the certificate of return of any candidate, the commission shall within 48 hours after the receipt of the order of such Court issue the successful candidate with a valid certificate of return.”
(2) Where the commission refuses and, or neglects to issue a certificate of return, a certified true copy of the order of a Court of competent jurisdiction shall, ipso facto, be sufficient for the purpose of swearing-in a candidate declared as the winner by the Court.”
While Section 140(1) of the Electoral Act 2006 provides as follows:-
“140(1) No election and return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Act referred to as an ‘election petition’) presented to the competent tribunal or Court in accordance with the provisions of the Constitution or of this Act, and in which the person elected or returned is joined as a party.”
The affidavit in support of the Originating Motion is hereby set out as follows:-
“I, EMMANUEL BWACHA, Male, Christian, Adult, member of the National Assembly, Nigerian citizen of Apo Legislative Quarters, Abuja, do hereby make oath and state as follows:-
(1) That I am the 1st Applicant in this suit and presently a member of the House of Representatives of the National Assembly and Chairman House Committee on Police Affairs. I am also a bonafide member of the 2nd Applicant. My membership card of the 2nd Applicant is attached herein as Exhibit “A”.
(2) The 2nd Applicant is the political party which was declared the winner of the Southern Senatorial District of Taraba State by the 1st and 2nd Respondents.
(3) That I have the consent and authority of the 2nd Applicant to depose to this affidavit.
(4) That the 1st Respondent is a public officer statutorily charged with the responsibility of running the 2nd Respondent.
(5) That the 2nd Respondent is a public institution with the statutory responsibility of conducting elections and declaring results in Nigeria.
(6) That the 3rd Respondent is the person who was replaced by me after the 3rd Respondent was expelled by the 2nd Applicant and my substitution of the 3rd Respondent by the 2nd Applicant.
(7) That in a letter dated 5th February, 2007, I was substituted by the 2nd Applicant in place of the 3rd Respondent as the 2nd Applicant’s candidate for the Southern Senatorial District of Taraba State. The said letter of substitution is attached herein as Exhibit “B”.
(8) That in a letter dated 2nd February, 2007, the said 3rd Respondent who I replaced, was expelled from the 2nd Applicant. The said letter of expulsion is attached herein as Exhibit “C”.
(9) That pursuant to my substitution to replace the said 3rd Respondent, I was accepted, screened, my name published and picture was placed on ballot papers by the 1st and 2nd Respondents.
(10) That as a result of the aforesaid publication of my name as the 2nd Applicant’s candidate for Southern Senatorial District of Taraba State and also the subsequent printing of my name on ballot papers, I commenced intense political campaigns in the process of which I expended huge resources.
(11) That during the said election of 21st April 2007, I was widely known as the 2nd Applicant’s candidate for Southern Senatorial District of Taraba State and duly sponsored by the 2nd Applicant with the 1st and 2nd Respondents not adversed to my candidature having accepted me as the 2nd Applicant’s candidate for the Senatorial District of Taraba State.
(12) That however after the said Senatorial Election of 21st April 2007, the 1st and 2nd Respondents refused to declare me the winner but however stated that my party, the 2nd Applicant won the said election.
(13) That as a result of the aforesaid action of the 1st and 2nd Respondents, I through the law firm of Alex A. Izinyon (SAN) & Co. wrote the 1st and 2nd Respondents on 25th April, 2007 demanding the 1st and 2nd Respondents to declare me the winner of the Election in the said Southern Senatorial District of Taraba State the 2nd Applicant having been declared the winner, the 3rd Respondent having been expelled by the 2nd Applicant.
(14) That despite the said letter, the 1st and 2nd Respondents have refused/failed to declare me winner of the election in the said Southern Senatorial District of Taraba State.
(15) That by virtue of the Electoral Act, 2006 the 1st and 2nd Respondents have the statutory powers to declare the winners of elections in Nigeria.
(16) That I have made a formal demand on the 1st and 2nd Respondents to perform their public duty of declaring me the winner of the election in Southern Senatorial District of Taraba State. My said letter of demand through my lawyers is attached herein as Exhibit “D”.
(17) That the 1st and 2nd Respondents will neither be prejudiced nor will they suffer any damages if the reliefs sought in this action are granted.
(18) That I make this Oath in good faith believing the contents of this affidavit to be true and in accordance with the OATHS ACT 1990.”
It is trite that it is the Plaintiffs claim which determines the Jurisdiction of a Court.
A careful examination of the originating Motion together with the supporting affidavit would reveal that the claim was cleverly drafted in that it was not questioning the validity of the return of any candidate as the winner in the said election.
The suit was based on the fact that the 2nd Respondent having won the said election and the Appellant having been expelled as a member of the 2nd Respondent, therefore the representative of the 2nd Respondent in the said election was the 1st Respondent.
The reliefs sought in my view were predicated on intra party matter which predates the said election.
In Jang vs. Dariye (2004) FWLR part 412 at 432 Paragraph A it was held among others that-
“The above view is in line with the interpretation given to similar provision on election matters where the view has repeatedly been expressed that an Election Tribunal is only given exclusive power to hear Election Petitioners and that its said power does not extend to power to conduct all trials in respect of elections nor does it confer its authority to handle preliminary issues or matter that take place before elections are held.
See – Doukpolagha vs. George (1992) 4 NWLR Part 236 Page 444;
– Enagi vs. Inuwa (1992) 3 NWLR Part 231 Page 548”
Also in the case of:-
– Amaechi vs. INEC (2008) 5 Part 1080 Page 222 the Supreme Court held as follows:-
“In the same way Section 285(2) relied upon by Senior Counsel cannot he construed to destroy the Jurisdiction which the ordinary Courts in Nigeria have in pre-election matters were the Courts to construe Section 285(2) as having the effect of ousting the Jurisdiction of the ordinary Court in pre-election matters, all that a Defendant would need to do to frustrate a Plaintiff is to stall for time and obtain adjournment to ensure that a plaintiff’s case is killed once an election is held.”
……
The Supreme Court held further:-
“It is my firm view that the Jurisdiction of the ordinary Courts to adjudicate in pre-election matters remains intact and unimpaired by Section 178(2) and 285(2) of the 1999 Constitution.”
Consequent upon the foregoing, it is my view that Section 285(1)(a) of the 1999 Constitution, Sections 69, 76(1) and (2), 140(1) of Electoral Act 2006 relied upon by counsel for the Appellant will not be relevant to the claim. The ordinary Courts still have the Jurisdiction to entertain pre-election and intra party matters.
This issue is therefore resolved in favour of the 1st and 2nd Respondents and against the Appellant.
ISSUE NO.2
“Whether the entire mandamus proceedings at the trial Court were not an abuse of Court process in view of Appeal No. CA/K/127/M/2007 filed by the Applicants and pending before the Court of Appeal, Kaduna.”
The learned Counsel for the Appellant submitted that the entire mandamus proceedings were a flagrant abuse of court process in view of the pendency of the Applicant’s appeal at the court of Appeal Kaduna and further in view of the Judgment of the Federal High court, Kaduna. He referred to pages 41-104 of the Record of Appeal. He went further that ample materials were placed before lower Court of the proceedings before the Federal High Court, Kaduna and Court of Appeal Kaduna.
It was further submitted on behalf of the Appellant that the case before the lower Court and that before the Federal High Court Kaduna and court of Appeal Kaduna were essentially same.
On the issue of what amounts to an abuse of Court process, learned Counsel for the Appellant referred to the following cases:-
– The Holy Chapel of Miracle vs. Madam Akon Iyoha and Another (2001) WRN Vol. 46 Page 103 at 132-133;
– Great Ogboru vs. James Ibori & 27 Others (2004) WRN Vol. 44 Page 98 at 124-125;
– Ashley Agwasim & Another vs. David Ojichie Another (2004) Volume 26 WRN Page 1 Page 11
In his response the Learned Senior Counsel for the 1st and 2nd Respondents submitted that the trial Court was right in law when it held that the action for mandamus filed by the 1st and 2nd Respondents did not amount to an abuse of Court process. He went further that in determining whether a Suit amounts to an abuse of Court process it is the Defendant’s affidavit in support of his application that is examined by the Court. He relied on the following cases:-
– Usman vs. Baba (2005) 5 NWLR Part 917 Page 11 at 129 Paragraphs
B-E;
– Ngige vs. Achukwu (2004) 8 NWLR Part 875 Page 356 ratio 1;
– U.B.N. Plc vs. Edemkue (2005) 7 NWLR Part 925 Page 520 ratio 7.
It was also submitted on behalf of the 1st and 2nd Respondents that the Appellant was not able to show in the affidavit evidence that the issue of expulsion was raised and decided.
It was further contended that the suit at the Federal High Court, Kaduna culminating in the appeal at the Court of Appeal, Kaduna was predicated on the interpretation and applicability of Section 34(2) of the Electoral Act, 2006 while the matter at Federal High Court Abuja was predicated on the expulsion of the Appellant from the 2nd Respondent.
He finally submitted that the mandamus application is well founded and not an abuse of Court process.
He relied on the case:-
Govt. of Plateau vs. A.G. Federation (2006) 3 NWLR Part 967 Page 346 at 393 Paragraphs F-G.
The Learned Senior Counsel urged this Court to decide this issue in the negative and hold in favour of 1st and 2nd Respondents and dismiss the appeal.
The question to be answered here is whether the entire proceedings at the trial Court were not an abuse of Court process in view of Appeal No. CA/K/127/M/2007 filed by the Applicants and pending before the Court of Appeal Kaduna.
The 1st and 2nd Respondents filed an Originating Motion dated 3/5/2007 before the Federal High Court, Abuja and prayed for the orders of mandamus etc as set out earlier in this Judgment.
At the hearing before the lower Court, the Appellant filed an application urging the Court to strike out the Originating Motion of the Respondent on the following grounds:-
“GROUNDS OF THE APPLICATION
1. On 5th April, 2007 the Federal High Court, Kaduna delivered Judgment in Suit No. FHC/KD/CS/80/2007 and nullified the 2nd Applicant/Respondent’s letter purportedly replacing the 3rd Respondent/Applicant with the 1st Respondent/Applicant.
2. The Federal High Court, Kaduna also made an order compelling the Independent National Electoral Commission to present the 3rd Respondent/Applicant as the PDP’s Senatorial Candidate for Southern Taraba Senatorial District in the Senatorial Elections of 21st April, 2007.
3. Dissatisfied with the Judgment of the Court, the 1st Applicant/Respondent appealed to the Court of Appeal vide a Notice of Appeal dated 10th April, 2007.x
4. The 1st Applicant/Respondent filed 3 motions before the Court of Appeal including one for injunction against the Judgment of the Federal High Court, numerous affidavits of urgency, letter to the Independent National Electoral Commission and even a letter to the Presiding Justice of the Court of Appeal, Kaduna and Court of Appeal fixed 15th day of May 2007 for the hearing of these motions.
5. The Applicants/Respondents in flagrant disrespect to the Court of Appeal have come to this Court in a desperate attempt to scuttle the Judgment of the Federal High Court and to deprive the 3rd Respondent/Applicant of the fruits of his Judgment.
6. The 3rd Respondent/Applicant contends that this action is an unfortunate and blatant abuse of the process of the Court of Appeal, Kaduna, the Federal High court, Kaduna and this Honourable Court and should accordingly be dismissed.”
(See Pages 50-51 of the Record of Appeal)
The application was supported by 15 paragraphs affidavit. The affidavit is set out as follows:-
“I, Honourable Joel Danlami Ikenya, Male, Christian, Nigerian citizen of Zone B, Block 33 Flat 4 do solemnly declare and state as follows:-
(1) That I am the 3rd Respondent/Applicant in this case.
(2) That by virtue of my position aforesaid and from information received which I verily believe I am conversant with the facts of this case.
(3) That on 2nd December, 2006 I contested the Senatorial nomination of the PDP for Southern Taraba District alongside the 1st Applicant/Respondent wherein I scored 1,238 votes and emerged victorious white the 1st Applicant/Respondent scored only 771 votes.
(4) That I was declared the winner and thereafter my name was submitted to INEC as PDP’S Senatorial Candidate for Southern Taraba Senatorial District.
(5) That in February, 2007 the PDP unlawfully sought to replace my name with that of the 1st Applicant/Respondent vide its letter dated 3rd February, 2007 wherein it gave the reason for the substitution as ‘lack of adequate information’. Copy of the said letter is herewith annexed and marked “Exhibit MM1”
(6) That I challenged the attempt to replace me by filing an action at the Federal High Court, Kaduna.
(7) That on 5th April, 2007 the Federal High Court, Kaduna delivered Judgment wherein it, inter-alia voided “Exhibit MM” above, and also ordered INEC to present me as the PDP’s Candidate for Taraba South Senatorial District. Annexed herewith is a certified true copy of the Order of that Court attached and marked “Exhibit MM2”.
(8) That not satisfied with the Judgment of the Federal High Court, Kaduna, the 1st Applicant/Respondent appealed to the Court of Appeal, Kaduna. Annexed herewith is a copy of the Notice of Appeal attached and marked “Exhibit MM3”.
(9) That the 1st Applicant/Respondent also filed many motions before the Court of Appeal for accelerated hearing, waiver of the rules, injunction and so on. Annexed herewith are copies of two of the motions attached and marked Exhibit MM4 and MM5 respectively.
(10) That the 1st Applicant also filed many affidavits of urgency. Annexed herewith are copies of 3 of the affidavits attached and marked Exhibits “MM6” “MM7” and “MM8” respectively.
(11) That because of this barrage of applications and affidavits, the Court of Appeal has now fixed the case for 15th May, 2007. Annexed herewith are a copy of the hearing notice and as well as the letter the Court of Appeal, Kaduna dated 2nd May, 2007 attached and marked “Exhibit MM9” and “MM9A” respectively.
(12) That when the Court of Appeal could not hear his application for injunction against the Judgment of the Federal High Court, Kaduna earlier than 18th June, 2007, as was earlier fixed, the 1st Applicant/Respondent caused his Counsel Dr. Alex Izinyon learned Senior Advocate to write to the Presiding Justice of the Court of Appeal, Kaduna a letter in which he applied for accelerated hearing. Annexed herewith is a copy of the letter attached and marked “Exhibit MM10”
(13) That the 1st Applicant/Respondent also directed his Counsel and the learned Senior Advocate again wrote to INEC requesting for a stay of execution that could not be obtained at the Court of Appeal. Annexed herewith is a copy of the letter attached and marked “Exhibit MM11″.
(14) That I have been informed by my Counsel, M.M. Nuruddeen, Esq. on Friday 4th May, 2007 at 4.00pm at his Chambers, and I verily believe him as follows:-
(a) That all the annexed documents show the existence of similar matter at the Court of Appeal, Kaduna.
(b) That this action is a clear and blatant abuse of Court process.
(15) That I swear to this affidavit to the best of my knowledge, information and belief in accordance with the Oaths Act, 1990.”
(See Pages 53-55 of the Record of Appeal)
The Appellant had earlier obtained a Judgment at the Federal High Court
Kaduna on 5th day of April 2007 in the following terms:-
“IT IS HEREBY ORDERED AS FOLLOWS:
1. That having found exhibit 7 (the 2nd Defendant’s letter to the 1st Defendant substituting the Plaintiff’s name with that of the 3rd Defendant) to be deficit of the law and accordingly set aside, reliefs numbers one, two and five are consequently granted to wit:
A. M. LIMAN PRESIDING JUDGE
(i) That by virtue of section 34 of the Electoral Act 2006, political parties seeking to substitute candidates must give ‘cogent and verifiable’ reasons for the substitution, and parties are bound to abide by the requirements of the law and INEC is enjoined to observe and enforce the observance of the law with regards to substitution of candidates.
(ii) That the 1st Defendant’s letter dated 5th day of February 2007, which substituted the Plaintiff’s name with that of the 3rd Defendant as PDP candidates for Southern Taraba Senatorial District is null, void and of no effect, having failed to meet the requirements of section 34 of the Electoral Act.
(v) That the 1st Defendant is hereby compelled to disregard the said letter of 2nd Defendant and to re-insert or re-install the Plaintiffs name as the PDP Senatorial Candidate for Taraba South in the forth-coming elections in all its registers, books, ballot and other official documents.”
(See Pages 59-60 of the Record of Appeal.)
The 1st Respondent who was the 3rd Defendant at the lower Court appealed against the Judgment of the Federal High Court Kaduna to the Court of Appeal Kaduna and prayed for the following reliefs:-
“(1) An order allowing the appeal and setting aside the Judgment of the trial Court.
(2) An order affirming the Appellant as the bonafide Senatorial Candidate of the 3rd Respondent for Southern Senatorial District of Taraba State.”
A careful examination of the application to strike out the originating motion of the Respondent at the lower court, in particular the grounds upon which the application was brought and the affidavit in support of the application on one hand, and the order contained in the Judgment obtained earlier by the present Appellant at Federal High court, Kaduna together with the relief sought in the appeal against the said Judgment filed at the court of Appeal, Kaduna by the present 1st Respondent who was the 3rd Respondent at Federal High Court, Kaduna, all set out above would reveal that the main claim in the application filed by the 1st Respondent at the lower Court which resulted in this appeal was primarily for:-
“An order of mandamus compelling 1st and 2nd Respondents to declare the 1st Applicant as the 2nd Applicant’s candidate for the Southern Senatorial District of Taraba State and consequently the winner of the 21st April 2007 Senatorial Election for the said Southern Senatorial District of Taraba State the 2nd Applicant having won the said election.”
It is my view that the relief set out above is designed to achieve the same purpose with relief sought at the Court of Appeal Kaduna by the present 1st Respondent which are for:-
“(1) An order allowing the appeal and setting aside the Judgment of the trial Court.
(2) An order affirming the Appellant as the bonafide Senatorial Candidate of the 3rd Respondent for the Southern Senatorial District of Taraba State.”
It is settled that where two suits are pending between the same parties and arise out the same subject matter and are actions in which common questions of law and facts arise or the alleged right to relief are in respect of or arise out of the same transaction or series of transactions as in this case, the suit filed later in time would be vexatious and constitute an abuse of process.
Furthermore, where matters involving the same issues are raised contemporaneously in two different Courts, it is desirable and clearly in the interest of Justice that these matters should be heard in only one of these two Courts. The rule is designed to avoid multiplicity of proceedings. The basis of the rule is the real possibility of two conflicting decisions in respect of one and the same subject matter.
In such a situation, it is desirable that the issues common to both matters are tried in only one Court. In this case the filing of Suit No-FHC/ABJ/M/304/07 which resulted in this present appeal No CA/A/158/M/2007 amounted to an abuse of Court process and if allowed to go on while Appeal No. CA/K/127/M/2007 is also in progress there is the real possibility of two conflicting judgments with litigants at liberty to accept the judgment favourable to them.
My view above is fortified by the decision of the Supreme Court in:-
– Ashley Agwasim & Another vs. David Ojichie & Another (Supra), where it was held among others that-
“A litigant has no right to pursue pari passu two processes in two Courts at the same time with a view to obtaining victory in one of the processes or in both. Litigation is not a game of chess, where players outsmart themselves by dexterity of purpose and traps. On the contrary litigation is a contest by Judicial process where the parties place on the table of Justice their different positions clearly, plainly and without tricks. In my humble view the two processes were in law not available to the Appellant simultaneously. Only one was available and the choice of which of these two was exclusively Appellants…”
See also the following cases:-
– The Holy Chapel of Miracles vs. Madam Akon Iyoha and Another (Supra);
– Great Ogboru vs. James Ibori and 27 Others (Supra).
The question that comes to my mind is what is the consequence of abuse of Court process?
It is my view that once a Court is satisfied that any proceeding before it is an abuse of court process it has the power indeed the duty to either stay, strike out or dismiss it to invoke its coercive power to punish the party which is in abuse of its process. Quite often, the power is exercisable by a dismissal of the action which constitutes the abuse.
See the following cases:-
– Onyeabuchi vs. INEC Abuja (2002) 8 NWLR Part 769 Page 417;
– Arubo vs. Aiyeleru (1993) 3 NWLR Part 280 Page 126:
– Okorodudu vs. Okoromadu (1977) 11 NSCC Page 105.
Consequent upon the foregoing, it is my view that the entire proceedings at the lower court in suit No. FHC/ABJ/M/304/07 is an abuse of Court process in view of Appeal No. CA/K/127/M/2007 filed by the present 1st Respondent who was the Appellant at Court of Appeal Kaduna. Therefore, the entire mandamus proceedings and processes are declared null and void and accordingly dismissed.
This issue No. 2 is hereby resolved in favour of the Appellant.
In the final analysis, with the resolution of one issue in favour of the Appellant and the other in favour of 1st and 2nd Respondents, this appeal succeeded in part.
There shall be no order as to costs.
MOHAMMED LAWAL GARBA, J.C.A: I have read the draft of the lead judgment delivered by BADA, JCA; my learned brother with whom I sat at hearing of this appeal. His lordship had lucidly considered the two issues that called for decisions in the appeal and the views expressed thereon are the same with mine.
For all the reasons set out in the lead judgment which I adopt, my decisions are that the Federal High Court Abuja had the requisite jurisdiction to entertain the case of the Appellant and that the Appellant’s case as very ably demonstrated in the lead judgment, is undoubtedly an abuse of the Court’s processes and meant to irritate, annoy and oppress of the 1st and 2nd Respondents particularly since it amounts to multiplicity of actions on the same subject matter against them after the cases at the Federal High Court Kaduna and the Court of Appeal, Kaduna. It is a clear abuse of the court process for a litigant to litigate again over identical question/s which had already been decided against him. ONYEABUCHI v. INEC (2002) 8 NWLR (769) 417 at 443.
I too hereby dismiss the mandamus proceedings initiated by the Appellant in the Federal High Court Abuja for being an abuse of that court’s process. Parties to bear their respective costs in the appeal.
REGINA OBIAGELI NWODO, J.C.A: I read in draft the judgment just delivered by my learned brother Bada J.C.A. and I agree completely with the reasoning contained therein and his conclusion that this appeal succeeds partially where the provisions in a statute are clear and devoid of any ambiguity. It should be construed to give effect to their ordinary grammatical meaning.
The provisions under S.285 (1) (a) and (2) of the 1999 constitution and sections 69, 76 and 140 of the Electoral Act 2006 are clear and unambiguous. S.285 of the constitution cannot be construed to exclude the jurisdiction of the Civil Courts in Nigeria in pre-election matters. The jurisdiction of the ordinary courts to adjudicate in pre-election matters remain intact by virtue of S178 (2) and S285 (2) of the 1999 constitution.
See Amaechi v. INEC 2008 5 (Pt 1080) Page 227
Therefore the exclusive power to hear election petitions conferred on the Elections Tribunals does not exclude the ordinary courts from hearing and determining preliminary matters that took place before the elections were held. The Federal High Court has jurisdiction to entertain pre-election and intra party matters within the limit of jurisdiction conferred by the statute.
The appellant in the instant matter decided to pursue two processes filed on same issue in two Courts at the same time. This is not allowed. It amounts to an abuse of process. The filing of a second suit in suit No. FHC/ABJ/M/304/07 which lead to the present appeal amounts to an abuse of court process. Multiplicity of proceedings by a party on same issue and same subject cannot be allowed by the Courts.
For the forgoing and the fuller reasons in the leading judgment I also hold the appeal succeeds in part and I abide by the order as to cost.
Appearances
MATHIAS IKYAU with him is BENEDICTA OKONJI (MISS)For Appellant
AND
DR. ALEX A. IZINYON S.A.N. with him are P. M. ANYAM and E. OGHOJAFOR for the 1st and 2nd RespondentsFor Respondent
