CHINEDU BENJAMIN OBIDIGWE v. MR. ANTHONY IGWEMMA & ORS
(2019)LCN/13076(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of April, 2019
CA/E/EPT/147/2019
RATIO
THE ATTITUDE OF THE COURTS TO ABUSE OF COURT PROCESSES BY PARTIES
The pronouncement of this Court in General Telephone And Electronics Limited V. Asset Management Corporation Of Nigeria (2017) LPELR-43558(CA) is very apt on this issue under consideration where the Court held thus: My lords, having found that both the Respondent’s suit constituted an abuse of the process of the Court below and thus liable to be dismissed and since in law nothing worth anything can come out from such an abusive process of Court, that is indeed the end of the road for the Respondent’s suit. There is in my view absolutely no basis in law to proceed to consider the merit or otherwise of issue three and four as that world clearly amount to a waste of the precious judicial time of this ever busy Court, having been rendered academic with the resolution of issues one and two with the definitive result on the entirety of this appeal leaving nothing more of any worth or moment to be further considered in this judgment.PER ABUBAKAR SADIQ UMAR, J.C.A.
ACADEMIC ISSUES: THE ATTITUDES OF THE COURTS TO ACADEMIC ISSUES
In Charles Oke & Anor V. Dr. Rahman Mimiko & Ors (2013) All FWLR (Pt. 693) 1853, where the full Court of the Supreme Court per Muhammad JSC, had this to say on this issue: “It is a principle of law long settled that the general attitude of the Courts of law is that they are loathe in making pronouncements on academic/hypothetical issues as it does not serve any useful purpose.” See Oke v. Mimiko (No. 1) (2014) 1 NWLR (pt. 1388) 225 @ pp. 254 – 255. See also Mbachu V. Anambra – Imo Rivers Basin Development Authority, Owerri (2006) All FWLR (pt. 342) 1482 @ p. 1497.PER ABUBAKAR SADIQ UMAR, J.C.A.
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria
Between
CHINEDU BENJAMIN OBIDIGWE Appellant(s)
AND
1. MR. ANTHONY IGWEMMA
2. HON. VICTOR JIDEFOR OKYE
3. ALL PROGRESSIVE GRAND ALLIANCE
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is a Cross Appeal against the judgment of the Federal High Court Awka, Anambra State in suit No. FHC/AWK/CS/148/2018 coram Honourable Justice I.B. Gafari delivered on 6th February 2019.
The 1st and 2nd Cross Respondents by an originating summons filed on the 5th November 2018 commenced an action at the lower Court sought for a determination of the following question:
1. Whether having regards to the provisions of Section 31 (5), & 31 (6) of the Electoral Act 2010 (as amended), the 1st defendant was qualified to be nominated as the All Progressive Grand Alliance (APGA) candidate for the Anambra East and West Federal Consistency in the 2019 General Election.
2. Whether having regard to the provisions of Sec 87 (1), 87 (2) 87 (4) (c) (ii) of the Electoral Act 2010 (as amended), Rule 10 (1) & (2) of the APGA Electoral Guideline for Primary Election 2018, the 2nd Plaintiff is the validly nominated candidate of the 2nd defendant to represent Anambra East and West Federal Constituency in 2019 General Election.
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3. Whether having regards to the provisions of Section 87 (1), 87 (2), 87 (4) (c) (ii) of the Electoral Act 2010 (as amended) Rule 10 (1) & (2) of APGA Electoral Guideline for Primary Election 2018, the 2nd Defendant ought not to have submitted the name of the 2nd Plaintiff to the 3rd Defendant as its validity nominated candidate in the APGA Primary Election to represent Anambra East and West Federal Constituency in the 2019 General Election.
The 1st and 2nd Cross Respondents also sought for the following reliefs in the originating summons:
1. A declaration of the Honourable Court that the 1st defendant is not statutorily qualified to stand election as a candidate for the Anambra East and West Federal Constituency in the 2019 General Election.
2. A declaration of the Honourable Court that the purported nomination of the 1st defendant by the 2nd defendant as its candidate for the Anambra East and West Federal Constituency in the 2019 General Election is unconstitutional, illegal, null and void and of no effect whatsoever.
3. A Declaration of the Honourable Court that the purported nomination and submission of the 1st Defendant?s name by the 2nd defendant to
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the 3rd defendant as its candidate for the Anambra East and West Federal Constituency in the 2019 General Election having violated the provisions of Sec. 31 (5) of the Electoral Act 2010 (as Amended) is unconstitutional, illegal, null and void and of no effect whatsoever.
4. An Order of the Honourable Court setting aside the illegal and the purported nomination and submission of the 1st Defendant?s name by the 2nd defendant to the 3rd defendant as its candidate for the Anambra East and West Federal Constituency in the 2019 General Election.
5. An Order of the Honourable Court setting aside the illegal recognition and publication of the 1st defendant?s name by the 3rd defendant as the 2nd defendant?s candidate for the Anambra East and West Federal Constituency in the 2019 General Election.
6. A declaration of the Honourable Court that the 2nd plaintiff is the validly nominated candidate of the 2nd defendant for the Anambra East and West Federal Constituency in the 2019 General Election.
7. An order of perpetual injunction restraining the 1st defendant from campaigning and parading himself as the 2nd defendant?s
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candidate for candidate (sic) for the Anambra East and West Federal Constituency in the 2019 General Election.
Upon being served with the originating summons, the Cross ? Appellant filed a Counter affidavit and written address in opposition to the originating summons on 07 December 2018. The Cross Appellant further filed a further counter affidavit on 17th January 2019. The Cross Appellant subsequently filed Motion on Notice dated and filed on 14th January 2019.
The 3rd Cross Respondent in response to the originating summons filed its appearance and Preliminary Objection on 3rd December 2018. The 4th Cross Respondent filed its appearance on 04 December 2018 along with a counter affidavit to the substantive suit.
On 6th of February 2019, the lower Court considered all the Preliminary objections/Motion on Notice filed by the exchanged by the parties as identified in the preceding paragraphs. The lower Court in its considered ruling delivered on 6th February 2019 found that the suit as presently constituted amount to an abuse of Court process, as the reliefs sought in the suit is similar to an earlier suit which has been determined by the
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High Court Anambra State in a judgment delivered on 09 November 2018. The lower Court then went ahead and dismissed the suit as it constitute an abuse of Court process. The Court held without any equivocation that having dismissed the suit on the grounds that it constitute an abuse of Court process, it becomes unnecessary to determine other issue raised by the parties. See page 191 of the records of appeal.
Aggrieved by the decision of the lower Court dismissing the suit without considering extensively its Notice of Preliminary Objection filed on 14th January 2019, the Cross Appellant filed a Notice of Cross Appeal filed on the 18th February 2019. The Notice of Cross Appeal contained a sole ground. The grounds and the particulars are reproduced below thus:
?Ground One
The Learned trial Judge was wrong when he failed to rule on or determine the cross-appellant?s Motion on Notice filed on the 14th day of January, 2019 challenging the competence of the 1st and 2nd Respondents? Originating Summons.
Particulars
A. The Learned trial Judge ought to have resolved the issues raised on the application which questioned the competence of the action.
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B. The learned trial Judge was wrong not to have ruled on all the issues or questions joined by the parties.
C. The Learned trial Judge ought to have found that he had a duty to determine all questions and issues joined by the parties to the proceedings.
D. The approach adopted by the learned trial Judge was wrong which thereby occasioned a grave miscarriage of justice.
Reliefs Sought from the Court of Appeal
a) An Order allowing this Cross-Appeal
b) An Order of this Honourable Court invoking Section 16 of the Court of Appeal Act, 2011 to hear and determine the Cross-Appellants application filed on 14th day of January, 2019 and to strike out the Originating Summons.
The Cross Appellant formulated a sole issue from the lone grounds of appeal. The issue is for determination reproduced below:
Whether the trial Court was right in not determining the Cross-Appellants Preliminary objection filed by way of motion on notice dated and filed the 14th day of January 2019.
The parties filed their respective briefs of arguments, with that of the Cross
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Appellant?s Brief filed on 12 March 2019. The 1st and 2nd Cross Respondent brief was filed on 25th May 2019. The 3rd cross respondent brief was filed on 01 April 2019. The parties adopted the issue for determination as formulated by the Cross Appellant. The various briefs were adopted at the proceedings of 08 April 2019.
ARGUMENT
The learned counsel for cross appellant submitted that the lower Court found that the 1st and 2nd cross respondent suit constitute an abuse of Court process and consequently dismissed the Originating Summons. It was the submission of the learned senior counsel that the lower Court in dismissing the suit was silent on the Preliminary Objection of the cross appellant. In essence, the learned counsel to the cross respondent submitted that the Court ought to have made a pronouncement one way or the other on the cross appellant?s preliminary objection. Reliance was placed on Newswatch Communication Ltd v. Atta (2006) 12 NWLR (Pt.993) 114, Chief of Naval Staff & Anor v. Tsenongo (2018) LPELR 45883 (CA) in submitting that every application before a Court must be determined one way or the other.
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Submitting further, the learned senior counsel urged this Court to invoke the provision of Section 16 of the Court of Appeal Act, 2011 and to determine the cross appellant?s Preliminary Objection which is before the Court of Appeal. In support of this argument learned senior counsel stated that no further evidence are required in the law to determine the Preliminary Objection. The learned senior counsel for the cross appellant relied on the decision of the Supreme Court in Obi v. INEC & Ors (2007) LPELR ? 2166 (SC) at 47 48. The cross appellant urged the Court to resolve the lone issue in favour of the cross appellant and grant all the reliefs as prayed in the Notice of Cross Appeal.
The learned counsel to the 1st and 2nd cross respondent in their brief of argument submitted in the same vein as the cross appellant that the lower Court ought to have considered and make a pronouncement on the cross appellant?s Preliminary Objection. He opined that this is an appropriate situation for the Court of Appeal to invoke its powers under Section 16 of the Court of Appeal Act. The counsel to the 1st and 2nd cross respondent however
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urged this Court to consider the Preliminary Objection, but to dismiss same.
The learned counsel to the 3rd cross respondent contends very strongly that the trial Court is not bound to consider the Preliminary objection of the cross appellant after the trial Court had considered the objection of the 3rd cross respondent which is first in time and came to the conclusion that the entire suit as constituted before the trial Court is an abuse of Court process. He argued further that the finding of the Court that the entire suit constitute an abuse of Court process has subsumed all other issues raised before the Court including the cross appellant?s Notice of Preliminary Objection as same goes to the issue of jurisdiction to entertain the suit.
The counsel to the 3rd cross respondent re-iterated that where a trial Court has dismissed a suit based on the objections of one of the parties, the Court has no obligation to subsequently proceed to determine all other objections. The learned counsel relied on the authorities of the authority of Mohammed v. Petrodel Resources (NIG) Ltd LPELR ? 44197 (CA), Ugbomah v. Allanah & Ors (2018) LPELR
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44832 (CA) in arguing that the pronouncement of the Court on the threshold issue subsumes all other issues and obviates the need for the Court to make pronouncement on other issues. He further argued that it has not been established by the cross respondent that the act of the trial Court, has occasioned miscarriage of justice on any of the parties.
Resolution of the Sole Issue
For the determination of the sole issue in this cross appeal, it would be necessary to reproduce prayers contained in the cross appellant Notice of Preliminary Objection which this Honourable Court has been invited to invoke the provisions of Section 16 of the Court of Appeal Act to consider. The cross appellant in the Notice of Preliminary Objection sought for the following prayers: –
A. AN ORDER striking out Reliefs 1, 2, 3, 4, 5, 7 and 8 of the Originating Summons for failure of the Plaintiffs to fulfil the condition precedent for invoking Section 31 (5) of the Electoral Act, 2010 (as amended); and/or in that the cause of action upon which the reliefs are sought had not arisen at the time the suit was filed.
B. AN ORDER of the Honourable Court
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striking out Reliefs 2, 4, 5, 6, 7 and 8 of the Originating summons for being statute barred having been filed outside the 14 days limited by Section 285 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
C. With the grant of Prayers A and B above, AN ORDER striking out the suit.?
The crux of this cross appeal is anchored on the decision of the lower Court dismissing the entire suit for being an abuse of court process without making specific or detailed pronouncement on the prayers contained in the cross appellant?s preliminary objection reproduced above. The set out question to be considered is whether the Court below having resolved a threshold legal issue which was the basis for dismissing the suit, had any further mandatory obligation to determine other issues before Court.
The law is quite clear that where a Court, whether a Court of first instance or an appellate Court is of the view that the resolution of a crucial issue resolves all other issues, the Court has no obligation to proceed to determine other issues. Upon due consideration of the various objections filed by the parties in the records
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of appeal, it is apparent that the lower Court picked out the threshold issue that the suit is an abuse of Court process on the grounds that a previous suit had decided the substance of the present suit before the lower Court.
I am of the firm viewpoint that having dismissed the entire suit on a vital threshold issue, a consideration and pronouncement of other various objection seeking to achieve relatively the same end result would amount to a mere academic exercise and a waste of precious judicial time. The Courts are not inclined to dissipate precious judicial time to pronounce on hypothetical issues.
The pronouncement of this Court in General Telephone And Electronics Limited V. Asset Management Corporation Of Nigeria (2017) LPELR-43558(CA) is very apt on this issue under consideration where the Court held thus: ?My lords, having found that both the Respondent’s suit constituted an abuse of the process of the Court below and thus liable to be dismissed and since in law nothing worth anything can come out from such an abusive process of Court, that is indeed the end of the road for the Respondent’s suit. There is in my view absolutely no
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basis in law to proceed to consider the merit or otherwise of issue three and four as that world clearly amount to a waste of the precious judicial time of this ever busy Court, having been rendered academic with the resolution of issues one and two with the definitive result on the entirety of this appeal leaving nothing more of any worth or moment to be further considered in this judgment. In Charles Oke & Anor V. Dr. Rahman Mimiko & Ors (2013) All FWLR (Pt. 693) 1853, where the full Court of the Supreme Court per Muhammad JSC, had this to say on this issue: “It is a principle of law long settled that the general attitude of the Courts of law is that they are loathe in making pronouncements on academic/hypothetical issues as it does not serve any useful purpose.” See Oke v. Mimiko (No. 1) (2014) 1 NWLR (pt. 1388) 225 @ pp. 254 – 255. See also Mbachu V. Anambra – Imo Rivers Basin Development Authority, Owerri (2006) All FWLR (pt. 342) 1482 @ p. 1497. The law is and has always been, one cannot put something on nothing and expect it to stand. It would definitely collapse. Thus, where the entire suit and claims of the Respondent had turned out to be an
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abuse of the process of Court that is the end of the matter and therefore, neither any need to consider the merit of such a case nor the soundness of such a ruling. See Macfoy v. UAC Ltd (1962) 1 AC 100 @ p. 160.”
It is also glaring from the records of appeal that the lower Court held that the cross appellants preliminary objection which this Court has now been invited to pronounce upon is a mere surplusage. The cross appellant in his counter affidavit and written submission filed on 7th December 2018 in opposition to the originating summons, argued extensively that the alleged Age Declaration of the (1st Defendant now cross appellant) has been litigated and pronounced upon by a Court of competent jurisdiction. He argued further that the judgment of the Anambra High Court in Suit No OT/194/2018 between Sunday Onuorah v. Chief Benjamin C. Obidigwe is a judgment in rem which binds all persons whether party to the proceedings or otherwise. See pages 47-52 of the records of appeal. It is on the foregoing basis that the lower Court at page 175 of the record of appeal made crucial findings as follows:
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“Although raised in his substantive defence vide his counter affidavit of 7th of December 2018, the 1st Defendant had canvassed therein a partly similar Preliminary Objection in paragraph 13 thus:
The issue of alleged false age declaration by me has been litigated and pronounced upon by the High Court of Justice, Otuocah Division in suit No. OT/194/2018: Between Sunday Onuorah v. Chief Benjami C. Obidigwe copy of which judgment is hereto attached and marked Exhibit Obi 3
Thus, his subsequent Preliminary Objection of the 14th January 2019 by way of motion on notice seeking that this suit be struck out is an addition. Although this learned senior counsel Arthur Obi Okafor SAN has listed 13 Grounds for seeking the Order, I find these Grounds altogether more elaborately contained in the 1st Defendant’s 12 paragraphs supporting affidavit.”
It can thus be seen and glaringly too that the submission of the learned senior counsel to the cross appellant in the written address of 7th December 2018 subsumed the cross appellant’s subsequent Preliminary Objection filed on 14th January 2019. The submission that this suit has previously been decided by
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a Court of competent jurisdiction was not only canvassed in the 3rd cross respondent?s Notice of Preliminary Objection. As evinced from the records of appeal at pages 47 ? 52 the same arguments was contained in the counter affidavit and written submission filed on 7th December 2018 by the cross appellant. Therefore, the submission that a similar suit has previously been decided by a Court of competent jurisdiction permeates through the Preliminary Objection of the 3rd cross respondent and the counter affidavit and written submission filed on 7th December 2018 by the cross appellant.
Relying on the submission of the cross appellant and the 3rd cross respondent, the learned trial judge in conclusion held thus:
No matter how one chooses to compare the two suits, their basic similarities are unmistakable. The arrow head in both suits is the 2nd Defendant in this suit. The Reliefs sough herein are the same in thrust with those in the earlier suit. In my considered view, this suit constitutes a clear abuse of Court processes. It is liable to be dismissed. Having thus held, it becomes unnecessary to proceed into any other or further
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determinations herein. This suit is accordingly dismissed.
Indeed, where the lower Court decided that it lacked the jurisdictional competence to proceed with the determination of the suit in view of the valid and existing judgment (as argued by the cross appellant and the 3rd cross respondent) it becomes absolutely unnecessary to proceed to specifically determined the cross appellant?s Preliminary Objection dated 14th January 2019, seeking in the main or ultimately for an order of the Court striking out the suit. I have no difficulties in coming to the conclusion that where a Court determines that a single threshold issue can dispose the entire suit as in this instant suit, the Court has no obligation whatsoever to proceed thereafter to determine all other objections or issues which are aimed at achieving the same result. The decision of the learned trial judge that it was unnecessary to proceed with the determination of other issues having dismissed the suit on a threshold issue, is to my mind is proper in law.
The learned counsel for the cross appellant relied on the decision of the Supreme Court in
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Newswatch Communications Ltd v Atta (2006) 12 NWLR (Pt. 993) in support of his argument that the trial Court must take a position in writing one way or the other on an application before the Court. I must be quick to mention that the pith and substance of the case in Newswatch Communications v Atta (Supra) is that the respondent sued the appellant for libel allegedly published by the appellant in the Newswatch magazine. The appellant was duly served with the statement of claim before the hearing commenced, but did not enter his defence until the third witness gave evidence. The hearing commenced and the trial suffered several adjournments at the instance of the Appellant. Consequently, after the case was adjourned for judgment the Appellant filed an application seeking in the main for (1) an order arresting the judgment. The appellant was not allowed to formally move this application by the trial Court. However, in its judgment, the trial Court thoroughly considered the application and held that it lacked merit. The appellant appealed to the Court of Appeal on the ground that it was denied the right to fair hearing by the trial Court by not allowing it to formally move its application.
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The Court of Appeal and Supreme Court rightly dismissed the appeal of the Appellant. It is pertinent to clarify that the case of Newswatch v Atta (Supra) is not relevant of applicable to facts of this appeal.
It is worth discerning that the lower Court indeed took a position on the preliminary objection of the cross appellant when the lower Court held at page 175 of the records of appeal thus …his subsequent Preliminary Objection of the 14th January 2019 by way of motion on notice seeking that this suit be struck out is an addition. The lower Court having determined that the cross appellant?s preliminary objection is an addition to the argument the cross appellant had canvassed in the counter affidavit and written address filed on 07 December 2018. I therefore find no merit in the submission of the counsel to the cross appellant that the lower Court was ?silent on the Preliminary Objection which the Cross ? Appellant filed? as the records of appeal provides otherwise.
In another submission, learned counsel for the cross appellant prayed the Court to invoke Section 16 of the Court
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of Appeal Act and that the Preliminary objection should be heard afresh. Section 16 of the Court of Appeal Act can be invoked in the interest of justice and to determine life issue. See Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 42.
I am however of the considered view that this is not an appropriate situation for this Court to invoke its powers under Section 16 of the Court of Appeal Act for the purposes of determining the cross appellant?s Preliminary Objection filed on 14th January 2019. I have with great deal of care examined the cross appellant?s Preliminary Objection filed on 14th January 2019 seeking in the main to strike out the Originating Summons. It is my observation that the invitation of this Court to consider the cross appellant?s Preliminary Objection to strike out a suit that has already been dismissed by the learned trial judge is a gross abuse of Court process.
To make this point clearer, the learned trial judge unequivocally dismissed the entire Originating Summons in the judgment delivered on 06 February 2019. The learned senior counsel to the cross appellant filed its Notice of Cross
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Appeal on 18th February 2019 seeking for An Order of this Honourable Court invoking Section 16 of the Court of Appeal Act, 2011 to hear and determine the Cross Appellants application filed on 14th day of January 2019 and to strike out the Originating Summons.
It is instructive to observe that this present cross appeal inviting this Honourable Court to invoke Section 16 of the Court of Appeal Act to strike out the Originating Summons, which had already been dismissed by the learned trial judge, is a gross abuse of Court process. The Supreme Court in Saraki V Kotoye (1992) 9 NWLR (pt.264) 156 at 188 on abuse of judicial processes generally, viz:
… The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice? It is recognised that the abuse of the process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a
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party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice.
How else can the relief sought in the cross appeal be described, other than being an attempt to invite this Honourable Court to embark on a voyage of academic exercise and make pronouncement on hypothetical issues that are of no moment.
On the whole, this cross appeal is devoid of any merit whatsoever and it ought to fail. It is accordingly dismissed.
IGNATIUS IGWE AGUBE, J.C.A.: Upon reading the Lead Judgment of my Learned brother A. S. UMAR, JCA, I am in complete agreement with his reasoning and conclusion that the Appeal of the Cross-Appellants in this Court is devoid of any merit as it is a mere academic exercise and ought to fail.
I shall also dismiss this Cross-Appeal and abide by the consequential orders as made by my Learned brother.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother ABUBAKAR SADIQ
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UMAR, JCA and I totally endorse the reasoning and conclusion therein.
The cross-appeal is an attempt to put the Court on a needless academic voyage. For the more detailed reasoning in the lead judgment of my learned brother, I equally find the cross-appeal totally devoid of merit and I dismiss it.
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Appearances:
Arthur Obi- Okafor,SAN with him, M.O OtukwuFor Appellant(s)
Ifeanyi Obi-Okafor with him, I. Anagor for the 1st & 2nd Cross-Respondent.
Emmanuel N. Onyibor with him, H.A. Nnenna for 3rd Cross-Respondent.
C.C Okwukalazu with brief of E.E Udeh for the 4th Respondent.For Respondent(s)
Appearances
Arthur Obi- Okafor,SAN with him, M.O OtukwuFor Appellant
AND
Ifeanyi Obi-Okafor with him, I. Anagor for the 1st & 2nd Cross-Respondent.
Emmanuel N. Onyibor with him, H.A. Nnenna for 3rd Cross-Respondent.
C.C Okwukalazu with brief of E.E Udeh for the 4th Respondent.For Respondent
