HOPE DEMOCRATIC PARTY (HDP) v. DR. GOODLUCK EBELE JONATHAN
(2011)LCN/4655(CA)
In The Court of Appeal of Nigeria
On Monday, the 27th day of June, 2011
CA/A/EPT/PRES/02/11
RATIO
TECHNICALITIES: ATTITUDE OF COURTS TO TECHNICALITIES
The courts would continue to frown on technicalities and uphold substantial justice. See: NGIGE v. OBI (2006) 14 NWLR (Pt. 999) 1. SALEH v. MONGUNO (2006) 15 NWLR (pt. 1001) 26″ OGUNDALU v. MCJOB (2006) 7 NWLR (pt.978) 148. PER ISA AYO SALAMI, J.C.A.
JURISDICTION: WHETHER IT IS THE CASE OF THE PLAINTIFF THAT DETERMINES THE JURISDICTION OF COURT
…it is the case put forward by the plaintiff that determines the jurisdiction of the court. See: NNONYE V. ANYICHIE (2005) 2 NWLR (PT.910) 623; NDIC V. CBN (2002) 7 NWLR (PT.766) 272; ELEBANJO V. DAWODU (2006) 15 NWLR (PT.1001) 76, ADEYEMI V. OPEYORI (1976) 9 -10 SC 31 AT 51. In the instant case, the court process to be used is the affidavit in support of the Applicant’s application. See INAKOJU v. ADELEKE (2007) 4 NWLR (Pt 1025) 423 at 588-589. PER ISA AYO SALAMI, J.C.A.
ABUSE OF COURT PROCESS: WHAT THE TERM “ ABUSE OF COURT PROCESS” ENTAILS
Abuse of process is a generic term which accommodates a variety of frivolous and vexatious proceedings leading to the harassment, irritation and annoyance of the other party to litigation. The categories of what constitute abuse of process of court are not closed. In the instant case, an attempt to relist a case which was struck out consequent upon the Applicant’s application for leave to withdraw without any good reasons is clearly an abuse of court process. PER ISA AYO SALAMI, J.C.A.
JURISDICTION: WHETHER COURT HAS JURISDICTION TO CONTROL ITS PROCEEDINGS AND STRIKE OUT A CASE THAT IS AN ABUSE OF ITS PROCESS
It cannot be doubted that the rules of court apart, every court of record has an inherent jurisdiction to control its proceedings, to strike out a case that is vexatious or frivolous-ENWEZOR v. ONYEJEKWE (1964) 1 ALL NLR 14 at 19, to prevent abuse of its process – ONALAJA v. OSHINUBI (1949) 12 WACA 503 and to strike out proceedings for want of diligent prosecution. See BASSEY BASSEY OKON & 1 OR. v. MRS. REBECCA P.E. EKANEM (2002) 15 NWLR (Pt.789) 106 at 133 (CA). Clearly, the motion of 8/6/2011 is frivolous, vexatious and an abuse of process. PER ISA AYO SALAMI, J.C.A.
JUSTICES
ISA AYO SALAMI Justice of The Court of Appeal of Nigeria
MOHAMMED L. GARBA Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
OBANDE OGBUINYA Justice of The Court of Appeal of Nigeria
Between
HOPE DEMOCRATIC PARTY (HDP) Appellant(s)
AND
1. DR. GOODLUCK EBELE JONATHAN
2. ARCH. NAMADI SAMBO
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
ISA AYO SALAMI, J.C.A. (Delivering the Lead Ruling): On Friday 27th May 2011, this Honourable Court granted leave and with the concurrence of the other parties to the petition acceded to the prayers in the Motion dated and filed by Hope Democratic Party (hereinafter referred to as the Applicant) that:-
“a. The petitioner is no longer desirous of maintaining this petition.
b. The petitioner’s candidate at the election having congratulated the president-elect in person of Dr. Goodluck Ebele Jonathon, the 1st Respondent herein withdraw (sic) its grievances at the April, 16th 2011 Presidential election in solidarity with its presidential candidate at the election.”
In its Ruling this court held (at page 4 of certified true copy of the Ruling dated 27/5/2011) that:-
“We have read the seven paragraph affidavit in support of the application as well as the one page written address annexed to the application. We heard learned Senior Counsel for the two sets of respondents. We find it expedient to grant the applicant leave to withdraw the petition dated and filed on 6th May 2011 pursuant to paragraph 29(1) of the First Schedule to the Electoral Act as amended.
For being withdrawn with the concurrence of all the …..”
By a Motion on Notice dated, 4/6/2011 and filed on 8/6/2011 the Applicant – Hope Democratic Party now prays for the following orders:-
“1. An order setting aside the order/ruling of the Tribunal made on 27th May, 2011 striking out the Petitioner Presidential Election petition as hearing proceeding been undertaken (sic) without jurisdiction as there were shown no return or a fixed date and the petition not set down for hearing at a pre-hearing session or at all.
2. An order restoring this presidential election Petition No. CA/EPT/PRES/02/11 and allowing the accelerated hearing of the petition before this Tribunal on its
3. An (sic) for such further other orders as this Honourable Court may deem fit to make in the circumstances,”
In support of this Motion, the Applicant filed an affidavit of 10 paragraphs sworn to by Ogubuike Udonna Esq. a legal practitioner in the chambers of A.A. Owuru & Co. of Counsel to the Applicant. The Applicant also filed a Written Address in support of the application.
The 1st and 2nd Respondents filed a counter-affidavit on 14/6/2011 deposed to by Friday Izinyon, legal practitioner in the chambers of Alex A. Izinyon (SAN) & Co. one of the leading Counsel to the 1st and 2nd Respondents to the application.
In addition, and on the same 14th June 2011, the 1st and 2nd Respondents filed a Written Address (incorporating Preliminary Objection) in support of the Counter-Affidavit in opposition to the Motion to set aside the order of Court striking out the petition.
On 16/6/2011 in reaction to the processes filed by the 1st and 2nd Respondents, the Applicant filed a Petitioner’s Reply to 1st and 2nd Respondents’ Counter Affidavit. The said Reply to Counter-Affidavit which contains 9 paragraphs was also sworn to by Ogubuike Udonna a legal practitioner in the chambers of A.A. Owuru & Co.
The Applicant also filed a Written Address in Reply to the 1st and 2nd Respondents’ Counter Affidavit.
On the same 16/6/2011, the 3rd Respondent filed, first, a 23 paragraph Counter-Affidavit sworn to by Feyisayo Folorunso a legal practitioner in the Law Firm of Awomolo & Associates in opposition to the Petitioner’s Motion and second, filed a Written Address in opposition to the Motion.
In their oral presentation before this Court, on 20/6/2011 the parties to the application relied on their respective Affidavit and Counter-Affidavits.
Before setting out the arguments in support and against the application, we shall first attend to the preliminary objection raised by the learned Senior Counsel to the 1st and 2nd Respondents.
The 1st and 2nd Respondents have raised three grounds of objection which can be summarised as follows: – (1) That the Applicant/Petitioner did not apply for leave for the Motion to re-list to be brought before the pre-hearing session which according to the Respondents offends the provision of paragraph 47(1) of the 1st Schedule of the Electoral Act, 2010 (as amended). (2) The Motion on Notice filed by the Petitioner Applicant did not state under what rule or law the application is brought as Statutorily required in paragraph 47(2) of the 1st Schedule of the Electoral Act, 2010 (as amended). (3) The Electoral Act, 2010 (as amended) made no provision for relisting petitions struck out. Instead, paragraph 46(1) of the 1st Schedule of the Electoral Act, 2010 (as amended) prohibits relisting of a petition struck out.
In all the processes filed by the Applicant, we could not find any specific reply to the preliminary objection of the 1st and 2nd Respondents, nevertheless we find it appropriate to discountenance the three grounds of preliminary objection. The 3rd ground of objection did not attack the competency of the Applicant’s Motion and therefore would have been properly raised as a substantive issue. It is not in the nature of a preliminary objection.
The second ground of objection, in our opinion promotes technicality rather than substantial justice. The courts would continue to frown on technicalities and uphold substantial justice. See: NGIGE v. OBI (2006) 14 NWLR (Pt. 999) 1.
SALEH v. MONGUNO (2006) 15 NWLR (pt. 1001) 26
OGUNDALU v. MCJOB (2006) 7 NWLR (pt.978) 148.
The first ground of objection is inapplicable in the circumstances of the present application. This is because the Petitioner/Applicant has no petition before this Honourable Court by which leave before a pretrial session would have been required under paragraph 47(1) of the 1st Schedule of the Electoral Act, 2010 (as amended).
In dealing with the arguments canvassed by the parties to this application, the arguments by the Applicant in support of the application shall be put on one side while those canvassed by the two sets of Respondents that is the 1st and 2nd Respondents and the 3rd Respondent would be placed together on the other side of the scale where necessary as the arguments by “the Respondents”. This is because of the shared common interest between the two sets of Respondents and for reasons of convenience.
Two related arguments could be deciphered from the Applicant’s position both in support of the application and in opposition to the points canvassed by the Respondents. The first is that the order/ruling of striking out of the petition made by this Honourable Court on the 27th May 2011 was without jurisdiction and due return or fixture of any motion for withdrawal of any kind on record. Also, that it is well established that the courts have powers to set aside or vary its order/ruling where it is satisfied that it was deceived or lacked jurisdiction in making such an order, as all such proceedings including any order or ruling become liable to be set aside.
In pursuing these lines of argument, the Applicant argued that the business for the day slated before the court on 27th May 2011 was the hearing of the Motion on Notice for injunctive reliefs and amendment to the petition and no more. The Applicant also claimed that Barister Tochukwu Alozor duly participated in the filing of the petition and the motion for injunctive order slated for the 27th May 2011. And, that the denial by the said T. Alozor Esq. in open court of his signature on the petition filed on the 6th May 2011, was an orchestrated blackmail and fraud designed “to hoodwink the petitioner and its presidential candidate by the eventual beneficiaries, the Respondents to strike out the petition at all means and costs.”
In paragraph 5(i) and (j) of the Petitioner’s Reply to 1st and 2nd Respondents’ Counter Affidavit, the Applicant raised fresh issues of facts as follows:-
“(i) That the emergence of the notice of withdrawal on the 27th May 2011 following curious messages using the tribunal chairman’s name and the presidency and the attempt to extort money from the petitioner’s presidential candidate is now a subject of investigation as contained in the letter dated 9th June, 2011 to the Inspector-General of Police. A copy is annexed hereto and marked Exhibit HDP3.
(j) That the order of this Honourable Tribunal made on the 27th May 2011 striking out the petition was a product of blackmail and deceit in the circumstances as shown above.”
Applicant concluded that in the circumstances, it is proper to set aside the order of this Court striking out the petition on 27th May 2011.
The Respondents on the other hand, first through the Counter-Affidavit of the 1st and 2nd Respondents in opposition to the motion to set aside reminded us that the Motion on Notice to withdraw the petition was entertained by this Honourable Court on the 27th day of May 2011 with the consent of the parties. That, the facts adduced by the Applicant in its Supporting Affidavit to the motion dated 4tr day of June, 2011 are quite different from the facts upon which this Honourable Court struck out the petition on the 27th day of May 2011 on the application of the petitioner. That in the Affidavit in Support of the Motion on Notice to withdraw the petition dated and filed on the 27th day of May, 2011, one Engineer Ejiro Moses, National Secretary to the Petitioner deposed to the fact that the National Executive Committee is no longer desirous of maintaining the Election Petition. And, that the Motion on Notice to withdraw the petition was filed and moved in the open Court by Eyare J. Ogar Esq. on the 27th day of May, 2011.
The Counter-Affidavit of the 1stand 2nd Respondents in opposition to the Motion to set aside in its paragraphs 5(viii),(ix) and (x) further state as follows:-
“(viii) That the 1st and 2nd Respondents have acted on the Notice of withdrawal and the order striking out the petition.
(x) That this Honourable Court’s Ruling striking out the petition was based on the Petitioner’s Motion to withdraw the petition doted 27th day of May 2011.”
Based on the above facts and in addressing the question whether or not this Honourable Court has jurisdiction to relist an election petition validly withdrawn by the Petitioner, learned Senior Counsel for the 1st and 2nd Respondents submitted that the filing and moving the application to withdraw the petition on the 27th day of May, 2011 by Eyare J. Ogar Esq. learned Counsel to the Petitioner/Applicant is binding on the Petitioner/Applicant. He said Counsel acting within the scope of his authority express or implied can bind his client. On this, learned Senior Counsel for the Respondents referred to the case of EDOZIEN v. EDOZIEN (1993) 1 NWLR (Pt. 272) page 678 at pages 702-704.
The Petitioner/Applicant said Respondents’ Counsel has not disclaimed or withdrawn the instructions given to learned Counsel Eyare J. Ogar, Esq. but that rather, paragraph (a) of the Affidavit in Support of the application, shows that the Petitioner/Applicant still relies on the skill and judgment of the said learned Counsel.
The Respondents submitted that without a disclaimer of Eyare J. Ogar Esq. by the Petitioner Applicant his withdrawal of the petition on the 27th day of May, 2011 is binding on the Petitioner.
Learned Senior Counsel for the 1st and 2nd Respondents referred to various representations by the Petitioner/Applicant as contained in paragraphs 3,4,5 and 6 of the Affidavit in Support of the Motion to withdraw the petition (Exhibit ‘A’) attached to this application.
On these, learned Senior Counsel submitted that the 1st and 2nd Respondents have acted on these representations and that it is too late for the Petitioner to resile from the decision to withdraw the petition, struck out on the 27th day of May 2011.
Learned Senior Counsel submitted further that by the doctrine of estoppel, a party is not allowed to represent a fact by conduct and resile from same to the detriment of the other party. He said, a party is not allowed to approbate and reprobate.
On this, Counsel relied on the provision of Section 151 of the Evidence Act as well as the case of UDE v. NWARA (1993) 2 NWLR (Part 278) 638 at 662-663.
Both in the Written Address in support of the Counter-Affidavit and in the oral presentation before this Honourable Court on 20/6/2011, learned Senior Counsel for the 1st and 2nd Respondents emphasized that the Petitioner’s Affidavit in support of the application did not show that the National Working Committee of the Petitioner’s party did not authorize the withdrawal of the petition on the 27th day of May, 2011 nor did the National Working Committee authorize the filing of a Notice to restore the petition. This, according to the Respondents Counsel is fatal to the application.
Also, the Respondents through the 3rd Respondent’s Counter affidavit deposed to by Feyisayo Folorunso a legal practitioner recaptured the events that took place in the Court on 27th day of May 2011 to demonstrate not only that there were no irregularities in the procedure adopted by either the parties or the Court in striking out the Petitioner’s/Applicant’s petition but also to show that appearance of Tochukwu Alozor Esq. neither obstructed the proceedings nor affected the Ruling of the Court.
Paragraphs 9-21 of the said 3rd Respondent’s Counter-affidavit are reproduced as follows:-
“9. That I was present in court on 27th day of May 2011 when one Tochukwa Alozor Esq. stood up to announce himself from the Bar as an interested party in the petition of the applicant before the court
10. That the said Tochukwu Alozor Esq. submitted to the court that his name was wed to file the Applicant’s petition without his consent’ that he was not the one who prepared and. presented the petition
11. That the self same Tochukwu Alozor Esq also denied ownership of the signature on the petition as being his own.
12. That one E.J. Ogar Esq. who appeared for the petitioner did not oppose or counter anything said by the said Tochukwu Alozor Esq.
13. That I know as a fact that it was after this that Counsel to other parties in the petition were asked to contribute to the bizarre development which they did.
14. That I know as a fact that it was after taking arguments from all Counsel when E.J. Ogor Esq. was replying that the court adjourned proceedings temporarily for a break of 10 minutes.
15. That before the court Fe-convened and before the 10 minutes break, another motion on notice was filed and served on us (3rd respondent) withdrawing the entire petition before the Tribunal on the ground (amongst others) that the Applicant herein had congratulated the 1st and 2nd Respondents.
16. That the Motion for withdrawal of petition was dated and filed on 27/05/2011 by E.J. Ogar Esq.
17. That the said E.J. Ogar Esq. later voluntarily abandoned his application for injunctive orders to move the new motion filed on 27/5/2011 withdrawing the petition before the court.
78. That the court ruled on the application filed on 27/05/2011, having been properly moved, argued and not opposed by the Respondents.
19. That r know that the court declined to award any cost to the Respondents even though the 3rd Respondent asked for cost
20. That I know as a fact that E.J. Ogar Esq. is not in the employment of A.A. Owuru & Co.
21. That all parties in this petition were duly served with the application seeking withdrawal of the petition by the Petitioner.”
On issues of law, the Respondents through the 3rd Respondent pointed out to us that paragraphs 4(f),(g),(h),(i),5,6,7,8 of the Affidavit in Support of the Applicant’s Motion are defective and offend the provisions of Sections 85, 86 and 87 of the Evidence Act.
It was submitted that the depositions in the said paragraphs of the affidavit are legal submissions, fit only for Counsel’s address. On this, learned Senior Counsel for the 3rd Respondent referred to the case of BAMAIYI v. THE STATE (2001) FWLR (Pt. 46) 956 at 981.
Learned Senior Counsel for the 3rd Respondent submitted further that a court of law having decided an issue and its decision embodied in its judgment, order or ruling has been made effective is fucntus officio and cannot re-open the matter and substitute a different decision to the one already recorded. That, an invitation of this nature, which is to reverse the decision of this Honourable Court, is an invitation to this Court to sit on appeal over its own decision and urged the Court not to do so.
On this, Counsel referred to the cases of: MINISTER OF LAGOS AFFAIRS MINES AND POWER & ANOR v. AKIN OLUGBADE (1974) 1 ALL NLR (Pt.2) 226 at 235; ASIYANBI v. ADENIJI (1967) 1ALL NLR 82.
OGBU v. ORUM (1981) 12 NSCC 81. and SODEINDE BROS LTD. v. ACB (1982) NSCC 184.
Counsel submitted further that a mistake or error by Counsel in a case is not authority for the same party against whom the order was made to ask the same court to review, reverse or nullify the order. He referred to the case of LEVENTIS MOTORS LTD. v. MBORU (1961) ALL NLR 539. Learned Senior Counsel for the 3d Respondent noted that it is not in dispute from the records that the Applicant in this case applied on its own for leave to withdraw its petition. Counsel submitted that when a suit is withdrawn either with or without leave of the court as envisaged under Paragraph 29 of the First Schedule of the Electoral Act, 2010 as amended, the petition or suit becomes terminated and having been effectively discontinued could not ground an application to relist. On this, Counsel referred to the decision of the Court of Appeal (Calabar Division) per Chukwuma Eneh JCA (as he then was) in AITISA v. CROSS LINES LTD. (2005) 14 NWLR (Pt.946) 645.
In deciding the Applicant’s motion one way or the other our attention must first be necessarily directed to the prayer of the Respondents through the 3rd Respondent that paragraphs 4(f),(g),(h),(i), 5,6,7,8 of the Affidavit in Support are defective and offend the provisions of Sections 86, 87 and 88 of the Evidence Act. The said paragraphs, more particularly 4(f),(g),(h),(i) are reproduced as follows:-
“4(f) That any proper motion in an election petition must follow a set pattern and set down rules and procedures.
(g) That no return and fixture on record relating to any notice of withdrawal of any petition to warrant an order striking out the petition.
(h) That no pre-trial hearing has commenced to disposed or abandoned (sic) any such issues before this Honourable Tribunal
(i) That the tribunal lacked jurisdiction to make any order striking out the petition in the absence of any compliance with the rules and fixture for such hearing and return ”
On the other hand, Sections 86 and 87 of the Evidence Act read as follows:-
“86. Every affidavit used in the court shall contain only statement of facts and circumstances to which the witness deposed, either of his own personal knowledge or from information, which he believes to be true.
87. An affidavit shall not contain extraneous matter, by way of objection, or prayer, or legal argument or conclusion.”
We have carefully examined the paragraphs of the Applicant’s affidavit complained of in the light of the provisions of the Evidence Act and found that paragraphs 4(f) – (i) of the Applicant’s supporting affidavit are indeed legal arguments or conclusions contrary to section 87 of the Evidence Act. For this reason, we axe inclined to strike out paragraphs 4(f) – (i) of the Applicant’s supporting affidavit and they are accordingly struck out.
Arising from the above decision, it became obvious that the petitioner’s supporting affidavit has become empty, bereft of any facts in support of the grounds of the application as contained on the face of the motion paper. The implication of the above is that the Applicant has not been able to demonstrate by facts his claims that
“…. Hearing/proceeding been (sic) undertaken without jurisdiction as there were shown no return or a fixed date and the petition not set down for hearing at a pre-hearing session or at all.”
This is because it is the case put forward by the plaintiff that determines the jurisdiction of the court. See: NNONYE V. ANYICHIE (2005) 2 NWLR (PT.910) 623; NDIC V. CBN (2002) 7 NWLR (PT.766) 272; ELEBANJO V. DAWODU (2006) 15 NWLR (PT.1001) 76, ADEYEMI V. OPEYORI (1976) 9 -10 SC 31 AT 51.
In the instant case, the court process to be used is the affidavit in support of the Applicant’s application. See INAKOJU v. ADELEKE (2007) 4 NWLR (Pt 1025) 423 at 588-589.
Therefore when such affidavit is worthless as it is in the instant case, it cannot support the application.
Now, for a moment, even if we take the above grounds for setting aside by the Applicant at their face value without any factual content, the petitioner must still be under serious misapprehension of the state of the law and facts more particularly to the events that took place in Court on 27th day of May 2011.
At this juncture and even from the perspective of the Applicant two questions needed to be answered.
(1) Was the Motion of 27/5/2011 fixed for hearing?
(2) Was there justification for setting down the motion of 27/5/2011 for hearing before a pre-hearing session.
We must say that we do not have any hesitation in answering the above questions in the affirmative. First, the Motion of 27/5/2011 was fixed for hearing and heard on 27/5/2011 and the necessity for so fixing and hearing it on that day arose from the fact that service of processes were duly effected, Counsel for all the parties were present in court, the petitioner expressed its willingness to move the motion for withdrawal of the petition and the Counsel for the Respondents did not oppose the motion.
From the above circumstances, we could not in good conscience find any error that could warrant a collateral attack of jurisdiction on the face of the record of the entire adjudicatory process.
In the process of writing this Ruling, our imagination was directed to the possibility of the Applicant thinking of non-compliance with the provision of paragraph 31 of the 1st Schedule to the Electoral Act 2010. The Paragraph reads:-
“Time for hearing for leave to withdraw petition.
31. – (1) The time for hearing the motion for leave to withdraw the election petition shall be fixed by the Tribunal or Court.
(2)The Secretary may give notice of the day fixed for the hearing of the motion to the respondents and post or cause to be posted on the Tribunal notice board a copy of the notice.”
We need to say here and now in relation to the petitioner’s motion of 27th May 2011 that the provision of paragraph 31(1) of the 1st Schedule to the Electoral Act was duly complied with and the said compliance by the Court dispenses of the need for any actions by the Secretary under paragraph 31(2) of the First Schedule.
The second question posed was answered by the proceedings of this Honourable Court itself on 27th May 2011. At page 4 of Exhibit HDPI, this Court held “Although no leave to bring the application before pre-hearing session was sought and obtained, we hereby grant leave to the applicant, in the peculiar circumstance of this petition to move the application.”
Clearly, the Appellant benefited from the exercise of this Honourable Court’s discretion by this ruling and was thereby able to move its motion for withdrawal of the petition on that same date. The Applicant had all the opportunity to complain on the exercise of the court’s discretion and to protest by refusing to move its motion for withdrawal on that day, but that did not happen. Rather, the Applicant rode on the back of the first Ruling of this Court on 27/5/2011 to secure the second Ruling which granted it leave to withdraw the petition on the same day.
Suffice to say in agreement with the learned Counsel to the Respondents that it is not in the nature of law to approbate and reprobate. This arose from the equitable maxim that “He who comes to equity must do equity” and translates amongst others to estoppel by representation as a principle of justice that a litigant must be bound by its previous representations. See: OYEROGBA v. OLAOPA (1998) 13 NWLR (Pt. 583) 509 at 519. ILOABACHIE v. ILOABACHIE (2000) 5 NWLR (Pt. 656) 178 at 219.
We believe that it was also in confirmation of these principles and in answer to the two questions earlier posed in this Ruling that the Respondents filed copious Counter-Affidavits first to demonstrate that there were no irregularities in the proceedings of 27/5/2011 and if any, they were waived by the conduct of the Applicant. For example, amongst the salient facts brought out by the Respondents is that the Applicant’s application for withdrawal was filed by E.J. Ogar Esq. and Tochukwu Alozor Esq., that both of them were physically present in Court on 27th May 2011 and that none of them contradicted each other on their different presentations to the Court on that day. Indeed, in our humble opinion, all these facts were presented in evidence by the Respondents ex abundante cautella. The reason being that as a matter of law, a party who waives a procedural irregularity (if any) cannot be later heard to complain on the court’s exercise of jurisdiction. For example, in FEED AND FOOD FARMS (NIGERIA) LTD. v. NIGERIAN NATIONAL PETROLEUM CORPORATION (2009) 12 NWLR (Pt.1155) 387 at 401 Tobi, J.S.C. speaking for the Supreme Court endorsed the view of Ayoola J.S.C. in MOBIL PRODUCING NIGERIA UNLIMITED v. LAGOS STATE ENVIRONMENTAL PROTECTION AGENCY (2002) 18 NWLR (Pt. 798) 1 that the right to be served with a pre-action notice does not fall within the category of rights which cannot be waived. The learned jurist continued:-
“Ayoola, J.S.C., in my humble view come out brilliantly in Mobil when he made the distinction between jurisdictional incompetence which is evident on the face of the proceedings and one which is dependent on ascertainment of facts, leads to error. In my view, for purposes of waiver, matters affecting the jurisdiction of the court should be categorized into two areas or compartments. These are jurisdictional matters affecting the public in the litigation process and those affecting the personal, private or domestic rights of the party. While the former cannot in law be waived, the latter can be waived in law. An example of the former is filing an action in a court that has no jurisdiction to hear the matter. For example, filing an action in the High Court to determine a dispute between two States of the Federation of Nigeria Certainly, a State High Court has no jurisdiction and as the issue involves a public right, none of the parties has the competence to waive it. I come to the second one. A good example is a pre-action notice. In my view, service of pre-action notice is a personal, private or domestic right of the party to be served He is the beneficiary of the service and so can waive it at will or on his terms. The right is not shared by members of the public or the public at large but is one specific to the party. If he decides to respond to the writ without service on him, he has the right to do so and the courts cannot hold that as the issue affects jurisdiction (sic) ….In my view, where an issue of jurisdiction, like the issuance of pre-action notice is domestic to the…”
In the instant case, for the avoidance of doubt, issues such as time for hearing the motion for leave to withdraw the election petition as in paragraph 31(1) or the ability of a party to move a motion before the pre-hearing session are matters of domestic jurisdiction which can be waived by the parties.
The Applicant, from its sets of affidavits and submissions before the Court sought to have introduced two sets of facts that are totally extraneous to the granting of the application for withdrawal and the order of striking out of 27/5/2011.
The first is the attempt by the Applicant to show that the denial of Tochulnnm Alozor Esq. of his signature on the petition was orchestrated.
The second, which is more particularly demonstrated by paragraph 5(i) and (j) of the Petitioner’s Reply to the 1st and 2nd Respondent’s Counter Affidavit and its annexure Exhibit HDP3 suggests that the “emergence of the Notice of withdrawal on the 27th May 2011” was consequent on threats of extortion and blackmail of the presidential candidate of the petitioner.
Apart from the fact that this Honourable Court is truly functus officio vis-a-vis its Ruling of 27/5/2011, these two set of facts are totally extraneous to the circumstances which led to the granting of the Applicant’s application for withdrawal and the subsequent order of striking out. They are also totally irrelevant to the present application.
The Respondents have clearly demonstrated that the granting of the Applicant’ s application of 27/5/2011 was totally unrelated to the allegations of disruption of court proceedings on that day levied by the petitioner against Tochukwu Alozor Esq. The Respondents have equally shown that the denial of his signature by Tochukwu Alozor Esq. was done in open court in the presence of E.J. Ogar Esq. That, the Applicant has not for once denied the representation of E.J. Ogar Esq. in any of the processes filed. And finally that the motion for withdrawal of 27/5/2011 was signed by both E.J. Ogar Esq. and Tochukwu Alozor Esq. The second set of facts presented by the Applicant on this score seems to be more worrisome. We believe it is the height of unserious ness in the practice of law for the Applicant to imagine that it is the duty of courts of law to work out a causal connection between the pressures on its presidential candidate and its voluntary conduct of filing a motion for withdrawal of an election petition.
In our humble opinion, it is for all these reasons that the learned Senior Counsel for the Respondents suggested in their oral presentations before this Court on 20/6/2011 that the Applicant’s Motion on Notice constitutes abuse of court process.
Abuse of process is a generic term which accommodates a variety of frivolous and vexatious proceedings leading to the harassment, irritation and annoyance of the other party to litigation. The categories of what constitute abuse of process of court are not closed. In the instant case, an attempt to relist a case which was struck out consequent upon the Applicant’s application for leave to withdraw without any good reasons is clearly an abuse of court process.
It cannot be doubted that the rules of court apart, every court of record has an inherent jurisdiction to control its proceedings, to strike out a case that is vexatious or frivolous-ENWEZOR v. ONYEJEKWE (1964) 1 ALL NLR 14 at 19, to prevent abuse of its process – ONALAJA v. OSHINUBI (1949) 12 WACA 503 and to strike out proceedings for want of diligent prosecution. See BASSEY BASSEY OKON & 1 OR. v. MRS. REBECCA P.E. EKANEM (2002) 15 NWLR (Pt.789) 106 at 133 (CA). Clearly, the motion of 8/6/2011 is frivolous, vexatious and an abuse of process. More, importantly, the Applicant has not shown any reasons why the Ruling of this Honourable Court delivered on 27/5/2011 should be set aside as the court acted within jurisdiction in delivering that Ruling.
We find no merit in the Applicant’s motion dated 4/6/2011 and filed on 8/6/2011 and it is accordingly dismissed.
There shall be no order as to costs.
MOHAMMED L. GARBA, J.C.A.: I agree.
M.A. OWOADE, J.C.A.: I agree.
IGNATIUS IGWE AGUBE, J.C.A.: I agree.
OBANDE OGBUINYA, J.C.A.: I agree.
Appearances
APPEARANCES -FOR PETITIONER
Emeka Onyme
Udonna Ogubuike (Miss)For Appellant
AND
APPEARANCES FOR 1ST AND 2ND RESPONDENTS
1. D.D. Dodo, SAN
2. F.F. Egele, Esq.
3 Bola Aidi, Esq.
4. Audu Anuga, Esq
5. Ehi Uwaifoh, Esq.
6. U. Egbon, Esq
7. Abimbola Kayode, Esq.
8. John Okonkwo, Esq.
9. D.U. Achumba (Mrs.)
10. A. L. Yabidu (Miss
11. Kenneth Omoruanr Esq.
12. Hannatu Abdurahman (Mrs.)
13. Chinenye Onyemaize, Esq.
14. E. Oghojafor, Esq.
15. Ifeyinwa Arum
16. Ukonwa Idedife
17. Festus Jumbo, Esq.
18. Rachael Osibu
19. Babara Omosun (Miss)
20. Patrick Abang, Esq.
21. Njideka Odili (Miss)
22. Kingsley Odey Esq
23. Chidinma Uwa, Esq.
24. Okonache Ogoor, Esq.
25. Kenechulwu Azie Esq.
26. Patrick Umoh, Esq.
27. Eko Ejembi Eko Esq.
APPEARANCES FOR 3RD RESPONDENT (INEC)
Dr, Onyechi Ikpeazu SAN
H.M. Liman
Wale Balogun
Marcus Abu
Prisca Ozoilesike
O.A Aiyemowa
Chinedu Onyechi Ikpeazu
Fatima Bukar
Bakarat Ali
Aminu Sadauki
Hadi Jazuli
Anulika OsuigweFor Respondent
