CHIEF LUQMAN OYEBISI ILAKA & ANOR v. SEN. TESLIM KOLAWOLE FOLARIN & ORS
(2019)LCN/13562(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 25th day of June, 2019
CA/IB/EPT/OY/SEN/03/19
RATIO
COURT: THE SUPREME COURT FROWNS AT THE ABUSE OF COURT PROCESSES
There is no doubt that the Supreme Court in a plethora of authorities frown at issue of abuse of Court process whenever it occurs. Abuse of Court process simply means that the process of the Court has not been used bonafide and properly. It also connotes the employment of the judicial process by a party in improper way to the irritation and annoyance of his opponent and the efficient and effective administration of justice. See A. G. Lagos State v. A. G. Federation (2015) 62 (Pt. 2) NSCQR 1155 at 1308-1309. PER ABUBAKAR MAHMUD TALBA, J.C.A.
ABUSE OF PROCESS: HOW THE COURTS WILL DETERMINE IF THERE IS AN ABUSE OF COURT PROCESSES
In considering whether an abuse of process has occurred, the Court will consider the content of the first process vis–vis the second one to see whether they are aimed at achieving the same purpose. See Agwasim v. Ojichie (2004) 10 NWLR (Pt. 882) 613.
An abuse of Court process would occur in one or more of the following situations:
1. Where the parties, subject matter and the issue in a previous and a later suit are the same.
2. Where different actions are filed in different or the same Court Simultaneously in respect of the same right and subject matter.
3. Where a party litigates again on the same issue which has already been litigated upon between him and the same person by facts on which a decision has already been reached, and
4. Where the proceeding is wanting in bonafide or is frivolous, vexatious, and oppressive or amounts to abuse of legal procedure or improper legal process.
See Ukachukwu vs. Uba (2005) 18 NWLR (Pt. 956) 1; UBN Ltd vs. Edamkue (2004) 4 NWLR (Pt. 863) 221 Abubakar v. B. O. & A. P Ltd (2007) 18 NWLR (Pt. 1066) 319. PER ABUBAKAR MAHMUD TALBA, J.C.A.
JUSTICES
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria
FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria
Between
1. CHIEF LUQMAN OYEBISI ILAKA
2. PEOPLES DEMOCRACTIC PARTY (PDP) Appellant(s)
AND
1. SEN. TESLIM KOLAWOLE FOLARIN
2. ALL PROGRESSIVES CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the National and State Houses of Assembly Election Petition Tribunal Holden at Ibadan in Petition No EPT/OY/SEN/11/2019 delivered on 4th day of May, 2019 wherein the Tribunal held that the 3rd Respondents Reply filed on 9th April, 2019 was competent thus dismissing prayer two (2) of the Appellants motion on notice dated 30th April, 2019 but filed on 1st May 2019. The said motion on notice is contained at pages 256 ? 265 of the Records, while the Ruling of the Tribunal is at pages 269 ? 271 of the Records. Not satisfied with the decision of the tribunal the appellant appealed to this Court vide a notice of appeal dated and filed on 13th May, 2019. The notice of appeal contain two grounds of appeal, it is at pages 272 ? 275 of the records.
?A summary of the case is that the appellants filed their petition dated 16th March 2019 at the Tribunal on 17th March, 2019. The petition is contained at pages 1 ? 156 of the records. Upon service on the 3rd respondent of the appellant?s petition, the 3rd respondent
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filed a reply dated 2nd April, 2019, it is at pages 157 ? 173 of the records. The 3rd respondent again filed another reply on 9th April, 2019, it is at pages 183 ? 204 of the records. Pursuant to the filing of the two replies by the 3rd respondent, the appellants filed a motion on notice on 1st May, 2019 wherein the appellant sought for an order of the tribunal striking out the 3rd respondents reply filed on 2nd April, 2019 for non-compliance with the Rules set out in the first schedule to the Electoral Act 2010 (as amended). And to strike out the 3rd respondents reply filed on 9th April, 2019 for constituting an abuse of Court process. The application was heard by the lower tribunal on the 14th May, 2019 without any opposition. In its ruling delivered on the 4th May 2019, the lower Tribunal held thus.
?We have heard the Petitioners Counsel move the application for the replies respectively filed by the 3rd respondents on 02/04/19 and 09/04/19 to be struck out. The main reason advanced by counsel is that the 3rd respondents reply filed on 02/04/19 is incompetent. We have examined the reply of the 3rd respondent filed on 02/04/19 and we
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are of the opinion that there is no indication on its face to show that it was filed on behalf of the 3rd respondent or under any authority of the 3rd respondent apart from the heading: 3rd ?RESPONDENT?S REPLY?. The Counsel who signed the said 3rd respondents reply one F.O. AJIBOYE ESQ has affixed to the process stamp and seal but has not stated that he is counsel to the 3rd respondent or acting in that behalf. The counsel who signed the said reply has not furnished any address for service as required under the rules of the Tribunal. The representative of the 3rd respondent in Court has informed us on record that it was counsel that filed the reply on behalf of the 3rd respondent on 09/04/19 that was briefed by the 3rd respondent to act as the 3rd respondents counsel. We therefore agree with ABDULRAHEEM ESQ that the reply titled 3rd Respondent reply filed on the 02/04/2019 is incompetent on the reason advanced by counsel and struck out same as such. The decided cases cited by the petitioners counsel do not apply to the facts of the reply filed by counsel on behalf of the 3rd respondent on 09/04/19. This is because the cases cited contemplated
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a situation where the first of the processes filed is incompetent. In this case we have already found and held earlier in this ruling that the reply filed on 02/04/19 is incompetent. The said process struck out has also been held to have not been authorized by the 3rd respondent. As it stands now, the 3rd respondent has shown to have filed only the reply dated and filed on 09/04/19. This is to say in other words that the 3rd respondent in effect is not guilty to have filed two similar replies in this petition. We are therefore of the respectful opinion that the only 3rd respondents reply filed on 09/04/19 is competent. The application to strike out the said reply of the 3rd respondent dated 09/04/19 and filed on same date is refused and or dismissed?.
At the hearing of the appeal on the 13th June, 2019, the appellants counsel ABIODUN ABDULRAHEEM adopted the appellants brief of argument filed on 24th May, 2019 and the reply brief to the 1st, 2nd, and 3rd respondents brief filed on 31 May, 2019. A.T. ADEBAYO holding the brief of AHMED RAJI SAN adopted the 1st respondent?s brief of argument filed on the 28th May, 2019. BABATUNDE AKIOLA holding
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the brief of MICHEAL F. LANA adopted the 2nd respondent brief filed on 28th May, 2019. And MRS .O. EDODO-EMORE adopted the 3rd respondents brief filed on 28th May, 2019.
From the two grounds of appeal the appellant distilled a sole issue for determination thus:
?Whether the trial tribunal was right to have held that the 3rd Respondents Reply filed on 9th April, 2019 was competent having regards to the peculiar nature of election petitions.
The 1st, 2nd, and 3rd respondents adopted the sole issue formulated by the appellants. Ordinarily, it is best to resolve the issues the appellant requires that his appeal be determined upon. After all, the appellant is the party aggrieved by the decision being appealed against. It is therefore not a surprise for the respondents to adopt the sole issue formulated by the appellants. This appeal shall be determined and resolved on the sole issue formulated by the appellants.
The appellants counsel argued and submitted that Election petition procedure is sui generis and ought to be treated as such and the Courts have a duty to enforce strictly the provisions of the Electoral Act and its
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subsidiary legislations. It has a peculiar nature that differentiates it from all other civil suits. To buttress his argument the learned counsel cited the following cases: GEBI V. DAHIRU (2012) 1 NWLR (PT 1282) 560: ELUEMUNOH V. OBIDIGWE (2012) 7 WRN 36 AT 53 ALL PROGRESSIVE GRAND ALLIANCE V. UBA (2012) 11 WRN 153 AT 172.
Learned Counsel further submitted that by the clear provision of Rule 12 first schedule to the Electoral Act 2010 (as amended) a Respondent is required to file a Reply to a petitioners petition within 14 days from the day of service. See RULE 12 (1). Learned counsel contended that the rule did not contemplate a situation where a respondent will file two replies to a petition. He submitted that by virtue of Rule 14 (2) of the first schedule to the Electoral Act 2010 (as amended) and Rule 18 (6) (b) thereof, the law gives room for a party either the petitioner or the respondent who feels the need to alter any part of his process already filed to amend same, however subject to certain exception as provided for in Rule 14 (2) (b)(i) & (ii). He said from the clear provisions of the law, certain facts are clear:
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1. That the law only envisages the filing of one reply to a petitioners petition
2. That if there is the need to make any alterations to the process already filed a party is to come by way of amendment within the narrow window of opportunities given.
The learned counsel submitted that in the circumstances of this case the only window of opportunity open to the 3rd respondent was to move the tribunal to amend the reply. He cannot circumvent the law by filing a fresh reply in the form of reply dated 9th April, 2019. The learned counsel recounted the ruling of the lower tribunal wherein the lower tribunal distinguished the cases cited by the appellants before it on the grounds that since the Reply filed on 2nd April, 2019 was incompetent, then the latter one filed on 9th April 2019 would not be an abuse of Court process. Learned counsel submitted that in the present appeal as at the 9th of April, 2019 when the 3rd respondent filed another reply to the petitioners petition, the reply filed on 2nd day of April, 2019 was assumed to be competent, valid and subsisting until the tribunal held otherwise. Therefore the holding of the lower tribunal on 4th May, 2019 that
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the reply dated 2nd April, 2019 was incompetent cannot be the basis upon which to hold that, that of 9th April 2019 was competent. The reply of 9th April 2019 having been filed during the currency of the reply of 2nd April 2019 naturally makes it an abused process. As to what constitutes an abuse of Court process, the learned counsel cited the Supreme Court case of BARIGHA V. PDP (2013) 6 NWLR (PT 1349) 108 AT 113: See also OGBORU V UDUAGHAN (2013) 13 NWLR (PT 1370) 33 AT 60: O.S.I.E.C VS. N.C.P (2013) 9 NWLR 451 AT 466 ? 467.
As to what a Court would do in a case where it found that its process has been abused by a party he referred to the case of OGBORU V. UDUAGHAN (SUPRA) the Supreme Court held thus:
?The power of the Court to ward off abuse of its process is inherent for it to exercise for the purpose of maintaining its sanctity and dignity.?
See also O.S.I.E.C V. N.C.P (2013)9 NWLR (PT 1360) 451 AT 466 ? 467 learned counsel further submitted that the reply dated 9th April, 2019 ought to be held as incompetent, he relied on the case of TSA INDUSTRIES LTD V. FBN PCC (NO1) (2012) 14 NWLR (PT 1320) 326 AT 345
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where the Supreme Court held thus:
?where a party duplicates a Court process, the more current one which results in the duplication is regarded as an abuse of the Court process.?
See BARIGHA V. P.D.P (SUPRA) AFRICAN REINSURANCE CORPORATION V. JDP CONSTRUCTION NIGERIA LTD (2003) 4 SCM1 AT 17: AMAEFULE V. THE STATE (1988) 2 NWLR (PT 75) 156. Learned counsel concluded that the holding of the Court in the circumstance is capable of opening a floodgate for respondents to be filing multiple replies not minding the restrictive nature of election petition. He said this attitude will be counter ? productive to the intendment of Rule 12 of the first schedule to the Electoral Act 2010 (as amended). He urged the Court to resolve the lone issue in favour of the appellant and upturn the decision of the lower tribunal and strike out the 3rd respondent reply for constituting an abuse of Court process.
The 1st, 2nd, and 3rd Respondents having adopted the sole issue distilled by the appellants for the determination of this appeal. They went further to file the same or similar, but separate respondents brief verbatim. Therefore the consideration
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of any of the respondents brief is a consideration of the whole. I shall consider all the briefs at the same time by reference the 1st, 2nd, and 3rd respondents brief.
It is the argument and submission of learned Counsel for the 1st, 2nd and 3rd Respondents that the lower tribunal made some findings that were not appealed against these are:
1. That the Counsel on record that was briefed by the 3rd Respondent was the one that filed the reply dated 9th April 2019.
2. That the Coun
