ALHAJI BASHIR AHMAD DAN MALLAM & ORS v. THE REGISTERED TRUSTEES OF INDEPENDENT PETROLEUM MARKETERS ASSOCIATION OF NIGERIA (2016)

ALHAJI BASHIR AHMAD DAN MALLAM & ORS v. THE REGISTERED TRUSTEES OF INDEPENDENT PETROLEUM MARKETERS ASSOCIATION OF NIGERIA

(2016)LCN/8569(CA)

In The Court of Appeal of Nigeria

On Friday, the 6th day of May, 2016

CA/K/65/2015

RATIO

APPEAL: ROLE OF A RESPONDENT; WHAT IS THE ROLE OF A RESPONDENT IN AN APPEAL
The role of a Respondent is to defend the appeal or judgment of the trial Court. PER UWANI MUSA ABBA AJI, J.C.A.
APPEAL: CROSS APPEAL; WHAT IS A CROSS APPEAL
This is because a cross appeal is a process filed by the Respondent where he seeks to set aside a finding of the trial Court which is crucial and fundamental to a case. See ADDAX PETROLEUM DEV. (NIG.) LTD. V. IBEH (2007) ALL FWLR (PT. 380) 1558 AT 1569 PARAS D-E. PER UWANI MUSA ABBA AJI, J.C.A.
COURT: ABUSE OF COURT PROCESS; MEANING AND NATURE OF ABUSE OF COURT PROCESS
Abuse of Court process generally means that a party in litigation takes a most irregular, unusual and precipitate action in the judicial process for the sake of action qua litigation, merely to waste valuable litigation time. It is an action which is one (or more) too many; an action which could be avoided by the party without doing any harm to the matter in dispute. The process of the Court is used to overreach the adversary to the direct annoyance of the Court. The Court process is initiated with malice or in some premeditated or organized vendetta, aimed at frustrating either the quick disposal of the matter of the abatement of the matter for no good cause. The Court process could also be said to be abused where there is no iota of law supporting it. In other words, the Court process is premised or founded on frivolity or recklessness. See NTUKS V. NPA (2007) 13 NWLR (PT. 1050) 392.
It is trite that the law permits the parallel prosecution of civil claim and criminal trial of same subject matter. See F.R.N. V. LAWANI (2014) ALL FWLR (PT. 712) 17, OKONKWO V. ONU (2014) ALL FWLR (PT. 725) 395, NDIBE V. NDIBE (1998) 5 NWLR (PT. 551) 632. Nevertheless, when it comes to the consideration of what amounts to an abuse of Court process, the Court look at the motive rather than the right of the plaintiff. In ABUBAKAR V. B.O. & A.P. LTD. (2007) 18 NWLR (PT. 1066) 319, the Court considered an abuse of Court process as instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin that action. PER UWANI MUSA ABBA AJI, J.C.A.
COURT: ABUSE OF COURT PROCESS; WHAT AMOUNTS TO ABUSE OF COURT PROCESS
It is trite law that what constitutes an abuse of process is not the commencement of another suit with similar reliefs, on similar grounds and against the same parties during the pendency of an earlier suit, but the commencement of the second suit with the intention of prosecuting both suits. Thus the Courts have held that where the earlier suit is discontinued or dispensed with, even if this was done after the commencement of the second suit, there is no abuse of process – Ikhine Vs Edierodie (1996) 2 NWLR (Pt. 431) 468, The M.V. “S. Araz” Vs Scheep (1996) 5 NWLR (Pt. 447) 204; Ikhine Vs Edierodie (2001) 18 NWLR (Pt. 745) 466; Tomtec (Nig) Ltd Vs Federal Housing Authority (2009) 18 NWLR (Pt; 1173) 358. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

1. ALHAJI BASHIR AHMAD DAN MALLAM
2. ALHAJI RABI’U MUSA
3. ALHAJI GANA A.A.A GIRGIR
4. ALHAJI IDI MUSA GARKI
5. ALHAJI SALISU IBRAHIM
6. HON. ADAMU MADAKI
7. ALHAJI MANSUR UBA
8. ALHAJI TUKAU MUHAMMAD
9. ALHAJI MUSA A.U. DANGA
10. ALHAJI KABIRU DAHIRU
11. ALHAJI ABDULQADIR ABUBAKAR
(FOR THEMSELVES AND AS REPRESENTING MEMBERS OF IPMAN, NORTH WEST ZONE) Appellant(s)

AND

THE REGISTERED TRUSTEES OF INDEPENDENT PETROLEUM MARKETERS ASSOCIATION OF NIGERIA Respondent(s)

UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of justice, Kano State, holden at Kano in Suit No. K/274/2014, delivered by Justice Ibrahim Umar on 29/12/2014, wherein the Appellants’ Originating Summons at the lower Court were struck out for being an abuse of Court process.

The Appellants’ Originating Summons at the lower Court contained at pages 13-15 of the records dated and filed on 3/6/2014 sought for the following reliefs:
1. Whether by the provision of Article 2(ii) 7 (B) and 8(C) of the Constitution of Independent Petroleum Marketers Association of Nigeria, the defendant through its agents or officers can interfere, disrupt the operations or activities and affairs of the plaintiff.
If the answer to the forgoing question is in the negative, the plaintiffs pray for the following:-
1. A declaration that by virtue of Article 20 (ii) of the Constitution of Independent Petroleum Marketers Association of Nigeria, the Defendant cannot interfere, disrupt the operations or activities and affairs of the plaintiffs,
2. An Order of mandatory

injunction restraining the Defendant either by itself or through its officers or agents from interfering, disrupting the operations or activities and affairs of the plaintiffs.

The Respondent by a Notice of Preliminary Objection contained at pages 70-71 of the records objected to the suit of Appellants and sought for these orders on the following Grounds:
1. AN ORDER of this honourable Court setting aside/discharging the interim order of injunction made by this honourable Court on the 3rd October 2014 for non-disclosure of material facts, being an abuse of Court process and for want of jurisdiction,
2. AN ORDER dismissing the entire suit for want of jurisdiction and for being an abuse of Court process.
3. An order dismissing the suit for being premature and being initiated by persons who have not exhausted the condition precedent as provided by their Constitution,
4. AND FOR such further order/orders as this honourable Court may deem fit to make in the circumstances of this case.
GROUNDS UPON WHICH THE APPLICATION IS BROUGHT:
A. That the plaintiffs’ suit is premature and grossly incompetent having been brought to Court

without the plaintiffs firstly exhausting all constitutional avenues clearly stated in IPMAN Constitution for resolution of disputes before litigation, thus this Honourable Court?s jurisdiction has not been properly ignited.
B. The Plaintiffs/Respondents filed this suit after having been aware that there is a similar suit No. FHC/PH/CS/2014 in the Federal High Court Holden in Port Harcourt, Rivers State and even congratulated the President of Respondent on the matter in a National Daily Dated (Friday 9th May of May, 2014, at page 43 Daily Trust) but turned, somersaulted and deliberately refused to be a party to orderliness and noble objectives of the defendant to mislead this Honourable Court by way of self induced urgency to issue them with an interim order.
C. The Plaintiffs/Respondents failed or refused to disclose to the Court that they have also filed a similar suit before the Abuja High Court Suit No. FCT/HC/CV/1479/2014 and Magistrate Court Kano State before Honourable Mr. Kabara all in their desperation to mislead and thwart justice by always using different persons in suits whose facts are similar to the facts and circumstances in the

present matter.

The facts are that the Respondent is governed at all times and purposes by its Constitution of 1997 until when same was amended on 27/2/2011 by both the Appellants and the Respondent with a non-existing Memorandum of Understanding set out in a purported Respondent?s 2009 Constitution. The Appellants on the strength of the 2009 Constitution’ unilaterally christened themselves as “Executives of North-West Zone of the Respondent”. The legality of the Respondent?s 2009 Constitution, its leadership and tenure were adjudicated upon and declared null and void by the Federal High Court, sitting at Port Harcourt, Rivers State, in Suit No.FHC/PH/CS/12/2014, whose judgment is valid and subsisting as contained at pages 100-113 of the records. Consequent upon this judgment, the Appellants caused a Congratulatory Message to the National president, Chief Obasi Lawson to be published in Daily Trust Newspaper as contained at page 114. The National President of the Respondent via a letter dated 13/5/2014 dissolved the Respondent’s North-West/Kano Depot Executive and appointed a Caretaker Committee for the said Depot chaired by Alhaji Nasidi

Ali as contained at pages 115-116. The Appellants dissatisfied with their dissolution, filed another action by Originating Summons dated and filed on 3/6/2014 at pages 13-23. However, by a Preliminary Objection filed by the Respondent dated and filed on 21/11/2014 at pages 70-73, same was upheld in a judgment delivered on 29/12/2014 at pages 39-43 for being an abuse of Court process.

This appeal is thus precipitated by the said judgment, wherein the Appellants appealed vide a Notice of Appeal dated and filed on 30/101/2014, with 4 Grounds of appeal reproduced with their particulars thus:
GROUNDS OF APPEAL:
GROUND ONE:
The decision is against the weight of evidence.
GROUND TWO:
The learned trial judge end in law when he held that the suit before him is an abuse of Court process.
PARTICULARS
i. The parties in the suit before the learned trial judge and the
suit he relied upon are not the same.
ii. The subject matter in the suit before the learned trial judge and the suit the relied upon are not the same.
iii. The Plaintiffs (Now Appellants) did not embark on filling multiple actions before different Courts in

respect of same subject matter and parties.
iv. Therefore it was erroneous for the learned trial judge to hold that the Plaintiff’s suit (now Appellant) is an abuse of Court process.
GROUND THREE:
The learned trial judge erred in Law when he held that the Plaintiffs (Now Appellant) earlier on filed a direct criminal complaint to a Magistrate.
PARTICULARS:
i. Criminal trial (Not even a direct complaint) cannot prevent filing of a civil action,
ii. Therefore it was erroneous for the learned trial judge to make such holding,
GROUND FOUR:
The decision of the Lower Court is perverse.
PARTICULARS:
i. There is persistent error
ii. What was presented to the Court differed with its decision.
iii. Therefore it was erroneous for the learned trial judge to shut his eyes to the obvious.

In accordance with the Rules of this Court, the Appellants filed their Brief of argument dated 23/9/2015 and filed on 29/9/2015, but deemed properly filed by order of Court made on the 5/11/2015, settled by Abubakar Muhammad, Esq, wherein he formulated 3 issues for the determination of the appeal to wit:-
1. Whether

the learned trial judge of the Lower Court was right in Law when he hold that the suit before him is an abuse of Court process?
2. Whether the learned trial judge was right in law when he hold that the Plaintiffs (Now Appellants) had earlier on filed a Direct Criminal Complaint to a Magistrate?
3. Whether the decision of the Lower Court is perverse?

By a Notice of Preliminary Objection dated 31/2/2015 and filed on 9/12/2015, the Respondent?s learned Senior Counsel objected to the competence of the Appellants’ appeal dated 30/12/2014, wherein 2 Grounds of the Objection are:
GROUND 1:
The Appellants’ suit before Lower Court is an academic exercise as the principal relief sought by the Appellants in their Originating Summons as contained in Prayer 1 thereof is incompetent, vague and imprecise, leaving the ancillary relief in Prayer 2 as well as the entire Originating Summons baseless, worthless and otiose.
GROUND 2:
The Grounds 2, 3 and 4 of the Appellants’ Notice of Appeal are void and incomprehensive and therefore incompetent, null and void.

Alongside was filed the Respondent’s Brief of argument dated 31/2/2015 and

filed on 4/12/2015, settled by Chief O.E.B. Offiong, SAN, wherein he formulated an issue for the determination of this appeal thus:
Whether the Second Lower Court was right when it struck out the Appellants? Originating Process for being an abuse of Court process? (This sole issue is distilled from and covers all the Grounds 1, 2, 3 and 4 of the Appellants’ Notice of Appeal.)

Consequent to the Respondent?s Preliminary Objection, the Appellants’ learned Counsel filed a Reply on points of law dated and filed on 29/2/2016. At the hearing of the appeal on 6/4/2016, the Counsel to the Appellants adopted his Brief of argument and prayed this Court to allow the appeal while the learned senior Counsel to the Respondent adopted his Brief and urged the Court dismiss the appeal.

I shall first consider the Preliminary Objection before I delve into the substantive appeal.

On the 1st ground of the Preliminary Objection, it is submitted that the reliefs sought by the Appellants at the trial Court are incompetent, imprecise and vague. That the Appellants failed at the lower Court when seeking their reliefs to ascertain whether they relied

on the 1997 or 2009 Constitution of the IPMAN or not. Similarly, the said Constitution was not attached. Thus, that this honourable Court cannot descend into the arena and make a case for the Appellants. He relied on SHAGARI V. C.O.P (2007) 5 NWLR (PT. 1027) 272; AKPAN V. UDOH (2008) 3 NWLR (Pt. 1075) 590; ONONUJU V. STATE (2014) 8 NWLR (PT. 1409) 345. Furthermore, that the principal or main relief of the Appellants cannot be granted as it is not directly related to the subject-matter of the Appellants’ suit. He relied on AIG-IMOUKHEDE V. UBAH (2015) 8 NWLR (PT 1462) 399. He argued that once the reliefs 1 & 2 are struck out, the Appellants’ Originating Summons will be void of any reliefs whatsoever and this Court will have no jurisdiction to entertain same nor grant what has not been sought for since it is not a father Christmas. In support, he cited AKPAKPAN V. AKPAKPAN (2010) 1 NWLR (Pt. 1176) 627 AT 636-637 PARAS H-A, FBN PLC V. ACB LTD (2006) 1 NWLR (PT. 962) 438 AT 472 PARAS B-F. He contended that since there are no reliefs, this Court should not pride itself in academic exercise. He relied on ODOM V. PDP (2015) 6 NWLR (PT. 1456) 527; OKE V. MIMIKO (NO.1)

(2014) 1 NWLR (PT. 1388) 225, UGBA V. SUSWAM (2014) 14 NWLR (PT. 1427) 264, SALIK V. IDRIS (2014) 15 NWLR (PT. 1429) 36, ODEDO V. INEC (2008) 17 NWLR (1117) 554.

On the 2nd ground, he submitted that Grounds 2, 3 and 4 of the Appellants’ Notice of Appeal are void of substance and incomprehensive, incompetent, null and void and contrary to Order 6 Rule 2(1), (2) and (3) of the Court of Appeal Rules, 2011. Relying on UME V. MGBACHI (2014) ALL FWLR (PT. 726) 615 PARAS B-E, he submitted that an issue from an incompetent ground of appeal is worthless and should be struck out.

In response to the Preliminary Objection, the learned Counsel to the Appellants submitted that a suit is academic where it is merely theoretical and of no practical value. He relied on SALIK V. IDRIS (2015) ALL FWLR (PT. 790) 1307. On the 2nd ground of objection, he submitted that the grounds 2,3 and 4 of appeal filed by the Appellants have satisfied the requirements in Order 6 Rule 2(1), (2) and (3) of the Court of Appeal Rules, 2011. Besides, that by the provision of Order 6 Rule 5 of the Court of Appeal Rules, 2011, this honourable Court is not restricted by grounds of appeal in

deciding an appeal. He finally submitted that since the Respondent did not file a cross- appeal neither adopt the Appellants’ issues for determination nor confine himself to the grounds of appeal, he is forbidden from raising such issues. He relied on AKERE V. GOV. OYO STATE (2012) ALL FWLR (PT. 634) 53. He urged this Court to dismiss the preliminary objection and hear the appeal on its merit.

The 1st ground of objection of the Respondent’s learned senior Counsel is that the reliefs sought in the suit filed at the trial Court are incompetent, imprecise, vague and that the main relief of the Appellants cannot be granted as it is not directly related to the subject-matter of the Appellants’ suit. I must venture to state and observe that the objection here is on the relief in the suit filed at the trial and not on the appeal filed by the Appellants. This should have been fought at the trial Court and not here. Besides, the objection on Ground 1 is not emanated from the findings of the trial Court at all. This is an appellate Court. I have not seen in the reasoning of the trial Court that the Appellants’ suit was dismissed because the Appellants did not

state which Constitution of IPMAN they relied on or that same was not attached. The role of a Respondent is to defend the appeal or judgment of the trial Court. Whereas there is an Objection to the appeal, it is meant to terminate it. I do not agree with the submission of the Appellants’ Counsel on this that the Respondent ought to have filed a cross-appeal on this. This is because a cross appeal is a process filed by the Respondent where he seeks to set aside a finding of the trial Court which is crucial and fundamental to a case. See ADDAX PETROLEUM DEV. (NIG.) LTD. V. IBEH (2007) ALL FWLR (PT. 380) 1558 AT 1569 PARAS D-E. Since this is an appeal, the objection ought to be centered on the competence on otherwise of the appeal filed by the Appellants and not on the competence or otherwise of the reliefs sought at the trial Court. The Objection here is an afterthought, belated and ought to have been made during the trial and not for the first time here on appeal without the leave of this Court.

Another gravamen of the Respondent?s senior Counsel’s objection is that Grounds 2, 3 and 4 of the Appellants’ Notice of Appeal are void of substance and

incomprehensive, incompetent, null and void and contrary to Order 6 Rule 2(1), (2) and (3) of the Court of Appeal Rules, 2011. It is trite that an issue arising from an incompetent ground of appeal is itself incompetent. See AMADI V. ORISAKWE (1997) 7 NWLR (PT. 511) 161.

Nevertheless, what is an incompetent ground of appeal? A ground of appeal is incompetent when the other side is left in doubt and without adequate information on what the appellant is complaining about. See Z. P. IND. LTD. V. SAMOTECH LTD. (2007) 16 NWLR (PT. 1060) 315 AT 336 PARAS.B-C; ADEROUNMU V. OLOWU (2000) 4 NWLR (PT. 652) 253. Per BULKACHUWA, J.C.A in AGWUNCHA V. EZEMUOKA (2002) LPELR-12301(CA) gave comprehensive criteria of what may constitute a competent or incompetent Ground of appeal thus:
“A ground of appeal which is supposed to attack a decision of a Court can only be said to be incompetent where it is not attacking or pointing out the error in law or on the fact as decided by the Court, or it is defective when it is not drafted in the manner provided by Order 6 Rule 2 (1) of the Court of Appeal Rules. Instances of non – compliance of the above provisions have been shown as

follows; 1. The use of the wrong form such as filing a Civil appeal in a Criminal appeal. 2. The appeal is filed in the wrong Court. 3. The appeal is not signed by the appellant or his counsel. 4. The appeal is filed out of time without the leave of Court. Where none of the above is present in a ground of appeal it cannot be said to be incompetent. In the instant appeal, the ground of appeal is attacking the decision of the trial Court, it can therefore not be said to be incompetent. The fact that the particulars have been inelegantly drafted in that they should have been grounds of appeal they nonetheless cannot vitiate the ground which does not offend the provisions of Order 6 Rule 2(1) of the Court of Appeal Rules. It is therefore competent.”

I have reproduced the Grounds of appeal of the Appellants with all their particulars above and I am not in doubt of what the Appellants’ learned Counsel is seeking or challenging in the judgment of the trial Court. It is apparent that his Grounds emanate from and are connected to the decision of the trial Court; neither are they at large or vague or imprecise. I must confess that even a layman can easily

understand the nature of the complaint of the Appellants’ learned Counsel against the judgment of the trial Court. I therefore cannot decide otherwise. The Grounds are competent. Per ONNOGHEN, J.S.C, in C.C.B. PLC V. EKPERI (2007) 3 NWLR (PT. 1022) 493, held that: ‘
?It is settled law that for grounds of appeal to be valid and competent, they must be related to the decision being appealed against and should constitute a challenge to the ratio of the decision on appeal. It is still good law that where a ground of appeal as formulated does not arise from the judgment and purports to raise and attack an issue not decided by the judgment appealed against as is evident in the instant appeal, the same becomes incompetent and liable to be struck out.”

The sole purpose of preliminary objection is to terminate the appeal in its entirety, usually on grounds of incompetence. An attack on one ground of appeal leaving several grounds that can sustain the appeal does not come within the realm of preliminary objection. See IHEDIOHA V. OKOROCHA (2015) LPELR-25645(CA), MUHAMMED V. MILITARY ADMINISTRATOR PLATEAU STATE (2001) 16 NWLR (PT. 740) 524; NDIC V.

ORANU (2001) 18 NWLR (PT. 744) 183. In the light of this, the Preliminary Objection is dismissed.

I shall therefore consider the substantive appeal on a single issue formulated by the learned senior Counsel to the Respondent thus:
Whether the Second Lower Court was right when it struck out the Appellants’ Originating Process for being an abuse of Court process?

The learned Counsel to the Appellants has submitted that an abuse of Court process arises when there are multiple actions between same parties, when a party improperly uses judicial process to the irritation of his opponent. He relied on AWOFESO V. OYENUGA (1996) 7 NWIR (PT. 460) 360, A.C.B. V. NWAIGHE (2011) ALL FWLR (PT. 0568) 944. He submitted that suits FHC/PH/CS/12/2014 and FCT/HC/CV/1479/2014 are different from the suit before the trial Court. That the 2 suits stated earlier relate to disputes over leadership at the National level of IPMAN while the case at the lower Court relates to dispute over the election of the Appellants as the Executives of IPMAN, Kano Depot. Thus, that is not a relitigation. He cited ARUBO V. AIYELERU (1993) 3 NWLR (PT. 280) 126.
?
It is further submitted

that the law permits the parallel prosecution of civil claim and criminal trial of same subject matter. He relied on F.R.N. V. LAWANI (2014) All FWLR (PT. 712) 175; OKONKWO V. ONU (2014) ALL FWLR (PT. 725) 395; NDIBE V. NDIBE (1998) 5 NWLR (PT. 551) 632.

It is his submission that there is persistent error in the judgment of the trial Court and that a decision is perverse where the judge shuts his eyes to the obvious. He in support cited AKPATA V. UGO (2007) All FWLR (PT. 349) 1203. He argued that the trial Judge failed to make appropriate findings of facts and calls on this Court to order a retrial. He cited ARMELS TRANSPORT LTD V. MONTINE (1970) 1 ALL NLR 27. He contended that since the trial Court failed to apply the counter-affidavit evidence filed by the Appellants, this Court is urged to intervene. He in support relied on FABAMIYI V. OBEJE (1968) NMLR 242; F.C.W.H. V. LABADEBI (1977) 11, & 12 SC 15. He maintained that where a Court fails to resolve the dispute in conflicting claims of 2 parties as in this case, this honourable Court is called to set it aside and order a trial de novo. He relied on AMUKATI V. EKHAYEOR (1978) 1 SC. 37, DUMIYE V.

IDUOZE & ANOR (1978) 2 SC 1; SOLOMON & ORS V. MOGAJI (1982) 11 SC 1. He prayed this Court to allow the appeal and set aside the decision of the lower Court.

The learned senior Counsel to the Respondent on the other hand has submitted that the trial Court was right to hold as it did that the suit filed by the Appellants constituted an abuse of Court process. He submitted that multiplicity of actions on same subject matter between the same parties even where there exists a right to bring such an action will constitute an abuse of judicial process. He relied on DONALD V. SALEH (2015) 2 NWLR (PT. 1444) 529; OKOROCHA V. P.D.P. (2014) 7 NWLR (PT. 1406) S.C. P. 213 AT 290, PARAS. B-E; DENTON-WEST V. JACK (2013) 15 NWLR (PT. 1377) 205; OGBORU V. UDUAGHAN (2013) 12 NWLR (PT. 1370) 33; BARIGHA V. PDP (2013) 6 NWLR (PT. 1349) 185; WAZIRI V. GUMEL (2012) 9 NWLR (PT. 1304) 185; OGBORU V. UDUAGHAN (2011) 17 NWLR (PT. 1277) 727; DINGYADI V INEC (2011) 10 NWLR (PT. 1255) 347; DINGYADI V. INEC (NO.2) (2010) 18 NWLR (PT. 1224) 11 CHINDO V. ISAH (2011) 4 NWLR (PT. 1236) P.27 AT P.37 PARAS. E-G; SARAKI V. KOTOYE (1992) 9 NWLR (PT. 264) P. 156 AT P. 188 PARAS E-G.<br< p=””

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He argued that the concept of abuse of Court process is flexible and elastic as there is no hard and fast rule in determining the presence or otherwise of same in an action. He relied on DONALD V. SALEH (supra) AT 529 and WAZIRI V. GUMEL (supra). It is submitted that in O.S.S.I.E.C. V. N.C.P. (2013) 9 NWLR (PT. 1360) 451 AT PAGE 466 PARAS G-H, the 1999 Constitution of the FRN, by Section 6(6) has given the Courts inherent powers to terminate proceedings before it once there is abuse of Court process. He urged this Court to resolve this issue in his favour, dismiss the appeal and affirm the decision of the lower Court.

For the purpose of determining an abuse of process in this appeal, I shall rely on the processes filed by the Appellants at the trial Court vide their Originating Summons. Although the Appellants have not shown which of the Constitution (1997 or 2009 Constitution of the IPMAN) regulates their activities and is binding on them, there is an allusion at page 18, Paragraphs 12 “That this was a clear breach of the Constitution of Independent Petroleum Marketers Association of Nigeria.” This without dispute means that all the members of the

IPMAN are under a Constitution.
However, there is provided in the 2009 Constitution, in Article 2 that there shall be Zonal offices for administrative convenience. In Article 22.12, it is provided that:
“Subject to the provision of this Constitution, all other officers at the Zonal Depots levels shall have the same powers and functions as their corresponding National Officer except where this Constitution states otherwise. The Executive Committee at all levels shall have power to set up committees where necessary; desirable or expedient and shall assign to them such powers and functions as may be deemed appropriate.?

Similarly, by the provisions of Articles 2(ii) 7 (B) and 8(C) of the 1997 Constitution of Independent Petroleum Marketers Association of Nigeria (IPMAN), the Respondent through its agents or officers cannot interfere or disrupt the operations or activities and affairs of the Appellants. This is in tandem with what the Appellants had deposed at page 18, Paragraph 11 when their suit was instituted at the trial Court: “That the Defendant through its officers are interfering, disrupting the operations and activities of the

plaintiffs.” Furthermore, it has been submitted by the learned Counsel to the Appellants that suits FHC/PH/CS/12/2004 and FCT/HC/CV/1479/2014 are different from the suit before the trial Court. That the 2 suits at the FHC Port Harcourt and the FCT High Court relate to disputes over leadership at the National level of IPMAN while the case at the lower Court relates to dispute over election of the Appellants as the Executives of IPMAN, Kano Depot.

On the other hand, the trial Court never adduced any reason or ratio decidendi for holding that there was an abuse of Court process. At page 46 of the records, it held thus:
“In the instance(sic) case, the Plaintiffs/Applicants filed a suit No. PHC/PH/CS/12/2014 at the Federal High Court Holden at Port-Harcourt, Rivers State having been aware that there is a similar Suit No, FCT/HC/CV/1479/2014, at Abuja High Court, and at the same time instituted Direct Complain (sic) dated the 27/06/2014 in the Matter of (IPMAN) before Chief Magistrate Court Gidan Murtala, Kano.”

In both suits FHC/PH/CS/12/2014 and FCT/HC/CV/1479/2014, there is nowhere where any of the Appellants had featured as a party either as

Plaintiffs or Defendants. Thus, all the parties are not the same. The Respondent herein only featured in FHC/PH/CS/12/2014 as a party. On the subject-matter, suits FHC/PH/CS/12/2014 and FCT/HC/CV/1479/2014 relate to disputes over leadership at the National level of IPMAN while the case at the lower Court (K/274/2014) relates to dispute over the election of the Appellants as the Executives of IPMAN, Kano Depot. There is therefore no correlation between the parties and the subject-matter in suits FHC/PH/CS/12/2014 and FCT/HC/CV/1479/2014 with suit K/274/2014.

Abuse of Court process generally means that a party in litigation takes a most irregular, unusual and precipitate action in the judicial process for the sake of action qua litigation, merely to waste valuable litigation time. It is an action which is one (or more) too many; an action which could be avoided by the party without doing any harm to the matter in dispute. The process of the Court is used to overreach the adversary to the direct annoyance of the Court. The Court process is initiated with malice or in some premeditated or organized vendetta, aimed at frustrating either the quick disposal of

the matter of the abatement of the matter for no good cause. The Court process could also be said to be abused where there is no iota of law supporting it. In other words, the Court process is premised or founded on frivolity or recklessness. See NTUKS V. NPA (2007) 13 NWLR (PT. 1050) 392.
It is trite that the law permits the parallel prosecution of civil claim and criminal trial of same subject matter. See F.R.N. V. LAWANI (2014) ALL FWLR (PT. 712) 17, OKONKWO V. ONU (2014) ALL FWLR (PT. 725) 395, NDIBE V. NDIBE (1998) 5 NWLR (PT. 551) 632. Nevertheless, when it comes to the consideration of what amounts to an abuse of Court process, the Court look at the motive rather than the right of the plaintiff. In ABUBAKAR V. B.O. & A.P. LTD. (2007) 18 NWLR (PT. 1066) 319, the Court considered an abuse of Court process as instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin that action.

In the case under consideration, although there was instituted a criminal case before the Magistrate Court Kano

State and the said Court declined jurisdiction, it nonetheless does not amount to an abuse of Court process. The issue to be adjudicated in suit K/274/2014 could not have been adequately trashed in the earlier suits FHC/PH/CS/12/2014 and FCT/HC/1479/2014. Besides, the issue and the subject-matter are not the same. The Appellants at the North-West Zonal office, Kano, have their rights to be ventilated at the High Court of Kano State within their jurisdiction as constitutionally empowered by Section 6(6)(b) of the 1999 Constitution as amended.

I am of the opinion that the filing of Suit K/274/2014 after suits FHC/PH/CS/I2/2014, FCT/HC/CV/1479/2014 and the criminal case before the Magistrate Court Kano State by the Appellants for themselves and as representing Members of IPMAN, North West Zone, does not amount to an abuse of Court process.

This issue is resolved in favour of the Appellants. The appeal therefore succeeds and it is hereby allowed. Consequently, the judgment of the High Court of Justice, Kano State, holden at Kano in Suit No. K/274/2014, delivered by Justice Ibrahim Umar on 29/12/2014, is hereby set aside. The case is hereby remitted to

the Chief Judge of Kano State for trial on the merit by another judge of the Court other than Justice Ibrahim Umar. I make no order as to costs.

IBRAHIM SHATA BDLIYA, J.C.A.: I have been privileged to read in draft the leading judgment delivered by my learned brother, Uwani Musa Abba Aji, J.C.A. I agree totally with the reasoning and the decision reached therein. I have nothing useful to contribute to the erudite judgment. I can only adopt the reasoning and the decision as mine, and accordingly allow the appeal. The judgment of the lower Court delivered on the 29th of December, 2014 is hereby set aside. I abide by the order as to costs.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the draft of the lead judgment delivered by my learned brother, Uwani Musa Abba Aji, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with and abide the conclusion reached therein.

?The facts of this case are pretty straight forward. The Respondent is the umbrella body for the Independent Petroleum Marketers Association of

Nigeria and the activities of the Respondent was governed by its Constitution of 1997. There was a supported amendment to the Constitution in 2009 and this was allegedly passed on the 24th of February, 2011. On the strength of Revised Constitution, the Appellants took office as “Executives of North-West Zone of the Independent Petroleum Marketers Association of Nigeria, Kano Depot Unit”. A leadership tussle ensued in the Association at the National level by reason of the 2009 Constitution and this culminated in the commencement of an action in the Federal High Court sitting in Port Harcourt in Suit No FHC/PH/CS/12/2014 wherein the legality of the amendment made to the Constitution in 2009 and passed on the 24th of February, 2011 was put in issue. In a judgment delivered by the Federal High Court on the 20th of March, 2014, the 2009 Constitution was set aside and one Chief Obasi Lawson was declared the National President of the Association pursuant to the 1997 Constitution and the said Chief Obasi Lawson was authorized to organize elections to elect other members of the National Executive Committee of the Association in accordance with the 1997 Constitution.

The Appellants were aware of the suit and of its outcome and they sent a congratulatory message to the said Chief Obasi Lawson.

By a letter dated the 14th of May, 2014 and addressed to the Depot Manager of the NNPC – PPMC Depot, Kano, Chief Obasi Lawson dissolved the Appellants as the Kano Depot Unit Executive of the Association and appointed a Caretaker Committee in their stead. The letter read, in part, thus:
“DISSOLUTION OF IPMAN KANO DEPOT UNIT EXECUTIVE COMMITTEE, CONSTITUTION AND INTRODUCTION OF A NEW CARE TAKER COMMITTEE
The above subject matter refers.
Sequel to a Federal High Court, Port Harcourt Division judgment delivered by His Lordship, Justice Lambo Akanbi on the 20th of March, 2014 declaring Chief Obasi Lawson as the substantive National President of IPMAN and reaffirming the 1997 Constitution as the valid Constitution of IPMAN, the National Executive Committee (NEC) of IPMAN have hereby dissolved the Kano Depot Unit Executive of IPMAN led by Alhaji Bashir Ahmed Danmallam of Kunya Petroleum Ltd which came into office with 2009 IPMAN Constitution already nullified by the Court judgment.
Consequently, a new Unit Caretaker

Committee that will serve for a period of not more than 3 months is hereby appointed with immediate effect pending a substantive election in line with the 1997 Constitution …”

The Appellants were not happy with the decision to dissolve them as the Executive body of the Kano Depot Unit of the Association and they commenced the action in the lower Court by way of an Originating Summons dated the 3rd of June, 2014 to challenge the decision. The records of appeal show that sequel to the commencement of the action, the Appellants also filed a criminal complaint against the Respondent before the Magistrate Court 6, Gidan Murtala Kano and which complaint the Magistrate Court referred to the Assistant Inspector General of Police, Zone 1 for investigation. The records of appeal show that Counsel to the Respondent made a written representation dated the 5th of August, 2014 to the Magistrate in Charge of the Magistrate Court 6, Gidan Murtala Kano and wherein he informed the Magistrate of this pending matter in the lower Court on the same issue. The records show that sequel to the receipt of the written representation, the Magistrate addressed a letter dated the

6th of August, 2014 to the Assistant Inspector General of Police, Zone 1, and the letter read thus:
“Re: DIRECT COMPLAINT DATED 27/5/2014 IN THE MATTER OF INDEPENDENT PETROLEUM MARKETERS ASSOCIATION OF NIGERIA (IPMAN)
This is to write and inform you that the above letter to your office dated 27/6/2014 that requested for an investigation in the above captioned matter is hereby withdrawn as the Court is now aware that there is a pending case as regard to the matter at the High Court Wudil in Suit No K/274/2014 instituted by the complainant himself one Bashir Ahmed Dan Mallam and 10 others.
Consequent upon the above facts this Court does not have the jurisdiction to open a matter already before the High Court.
The Court has advised the parties to refer their dispute to the High Court where it is pending.
Thank you for your cooperation.”

The records also show that another group of persons not the Appellants, commenced an action against Chief Obasi Lawson in the High Court of the Federal Capital Territory in Suit No FCT/HC/M/414/2014 challenging the right of Chief Obasi Lawson to take over the affairs of the Association at the

National level and they obtained an order of interim injunction against him in May of 2014.

On the 21st of November 2014, the Respondent filed a notice of preliminary objection before the lower Court against the action commenced by the Appellants challenging their dissolution as the Executive body of the Kano Depot Unit of the Association. By the notice of preliminary objection, the Respondent sought for a dismissal of the suit on the grounds that (i) the lower Court did not have jurisdiction to entertain the suit as it was an abuse of process; (ii) the suit was premature as it was initiated by persons who had not exhausted the condition precedent as provided by their Constitution. The grounds upon which the preliminary objection was predicated were:
i. That the Appellants suit was premature and grossly incompetent having been brought to Court without the Appellants first exhausting all constitutional avenues clearly stated in IPMAN Constitution for resolution of disputes before litigation, thus this Honorable Court’s jurisdiction has not been properly ignited.
ii. The Appellants filed this suit after having been aware that there is a similar

suit No FHC/PH /CS/12/2014 in the Federal High Court holden in Port Harcourt, River State and even congratulated the President of the Respondent on the matter in a National Daily … but turned, somersaulted and deliberately refused to be a party to orderliness and noble objectives of the Respondent, only to mislead this Honorable Court by way of a self induced urgency to issue them with an interim order.
iii. The Appellants failed or refused to disclose to the Court that they have also filed a similar suit before the Abuja High Court No FCT/HC/CV/1479/2014 and Magistrate Court Kano State before Honorable Kabara all in their desperation to mislead and thwart justice by always using different persons in suits whose facts are similar to the facts and circumstances.

The lower Court took arguments on the notice of preliminary objection and in a Ruling delivered on the 29th of December 2014, it found that the matter was an abuse of process and it upheld the preliminary objection and struck out the suit. The lower Court stated thus:
“… It is an abuse of Court process where there are multiplicity of action over the same matter or issue instituted by

the plaintiff involving the same parties. The intention of the plaintiff must be in bad faith or a malafide and that such proceeding is not only frivolous but vexatious, oppressive or irritating to his opponent.
The issue of an abuse of process is a complete defence that can be raised by the Respondent to challenge the competence of the Applicant’s action or the jurisdiction of the Court to entertain same.
In the instant case, the Plaintiffs/Applicants filed a suit No FHC/PH/CS/12/2014 at the Federal High Court holden in Port Harcourt, River State having been aware that there is a similar suit No FCT/HC/CV/1479/2014 at Abuja High Court and at the same time instituted Direct Complain dated the 27/06/2014 in the Matter of IPMAN before Chief Magistrate Court Gidan Murtala, Kano.
The consequence of an abuse of Court process of this nature is to strike out the recently filed. The suit is hereby struck out …”

It is obvious from this excerpt of the Ruling that the only basis upon which the lower Court struck out the matter was that it was an abuse of process and the specie of abuse was that the action was a multiple action. This appeal

is against this Ruling.

Now, abuse of process is a concept; it is an idea or a general notion formed by generalization from particular examples. It is a concept that is imprecise. It involves circumstances and situations of infinite variety and conditions. In Messrs NV Scheep & Anor V. The Mv “S.Araz” & Anor (2000) 15 NWLR (Pt. 691) 622 at page 664 Karibi-Whyte JSC said of the concept thus:

“The legal concept of the abuse of the judicial process or the abuse of the procedure of the Court is very wide. The scope and content of the circumstances of the material facts and conduct, which will result in such abuse, are infinite in variety. It does not appear that the category can be closed. New unforeseen conduct from the stratagem of the plaintiffs can give rise to the abuse. An abuse may be constituted through a proper and legitimate conduct in bringing actions even in the exercise of an established right in the manner or time of instituting actions. It may be constituted by irregularities in the pursuit of actions.”
The concept of abuse of process has been dealt with in a myriad of cases in our Courts. In several cases, the Courts have looked at

the concept from the perspective of what amounts to an abuse and have itemized certain circumstances that will give rise to an abuse of judicial process as:
(a) Instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues, or a multiplicity of action on the same matter between the same parties even where there exists a right to begin the action.
(b) Instituting different actions between the same parties simultaneously in different Courts, even though on different grounds.
(c) Where two similar processes are used in respect of the exercise of the same right, for example, a cross appeal and a respondent’s notice.
(d) Where an application for adjournment is sought by a party to an action to bring an application for leave to raise issues of fact already decided by Courts below.
(e) Where there is no iota of law supporting a Court process or where it is premised on frivolity or recklessness.
See the cases of Jadesimi Vs Okotie-Eboh (1986) l NWLR (Pt 16) 264, Saraki Vs Kotoye (1992) 9 NWLR (Pt. 264) 156; Jimoh Vs Starco (Nig) Ltd (1998) 7 NWLR (Pt 558) 523; Abubakar Vs Bebeji Oil and Allied

Products Ltd (2007) 18 NWLR (Pt. 1066) 319; Tomtec (Nig) Ltd Vs Federal Housing Authority (2009) 18 NWLR (Pt 1173) 358.
A common feature of all the cases on abuse of process is that the concept is the improper use of the judicial process by a party in litigation to interfere with the efficient and effective administration of justice to the irritation and annoyance of his opponent. An abuse of process does not lie in the right to use a judicial process but rather in the manner of the exercise of the right. It consists of the intention, purpose or aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice; it is the inconveniences and inequities in the aims and purposes of the action – Saraki Vs Kotoye supra, Ogoejeofo Vs Ogoejeofo (2006) 3 NWLR (Pt. 966) 205, Ali Vs Albishir (2008) 3 NWLR (Pt. 1073) 94; Igbeke Vs Okadigbo (2013) 12 NWLR (Pt. 1368) 225.
The specie of the abuse of process in this matter was multiplicity of actions ? the complaint of the Respondent on the notice of preliminary objection was that this Suit No K/274/2014 was a multiple action of a similar suit

before the Abuja High Court in Suit No FCT/HC/CV/1479/2014 and of the criminal complaint made to the Magistrate Court Kano State before Honorable Kabara. The question is – when is there said to be a multiplicity of actions? This Court in its decision in Unity Bank Plc Vs Olatunji (2013) 15 NWLR (Pt. 1378) 503 at 534 C-F answered this question thus:
“In Okafor Vs Attorney General, Anambra State (1988) 2 NWLR (Pt. 79) 736, the Supreme Court said that “it is the law that multiplicity of action on the same matter may constitute an abuse of process of the Court, but that this is so only where the action is between the same parties with respect to the same subject matter.” In Saraki Vs Kotoye supra, the Supreme Court also stated that multiplicity of actions arise where a second action is commenced “on the same subject matter against the same opponent on the same issues.” In Ikhine Vs Edjerodje (2001) 18 NWLR (Pt. 745) 466, the Supreme Court reiterated on page 488 that “the law is that abuse of Court process in regard to multiple actions between the same parties on the same subject matter may arise when a party improperly uses judicial process to the irritation,

annoyance and harassment of his opponent not only in respect of the same subject matter but also in respect of the same issues in the other action.?
What these cases require a Court to do when faced with an issue of multiple actions constituting an abuse of process is to look at the processes filed in the two actions and see whether they are between the same parties on the same subject matter and on same or very similar issues…”
These principles were reiterated by the Supreme Court in Igbeke Vs Okadigbo (2013) 12 NWLR (Pt. 1368) 225.

I have looked and scoured through records of appeal and cannot find the Court processes of the similar suit that the Appellants were said to have filed before the Abuja High Court in Suit No FCT/HC/CV/1479/2014. It is elementary that appeals are heard and decided on the basis of the records of appeal compiled and transmitted by the parties from the lower Court to the appellate Court. The records of appeal are binding on the Court, the parties and their Counsel. An appellate Court has no jurisdiction to go outside the records of appeal and draw conclusions which are not supported by the records – Onwuka Vs

Ononuju (2009) 11 NWLR (Pt. 1151) 174, Olufeagba Vs Abdur-Raheem (2009) 18 NWLR (Pt. 1173) 384 and Garuba Vs Omokhodion (2011) 14 NWLR (Pt. 1269) 145. Nothing in the records of appeal supports the assertion of the Respondent that the Appellants filed a similar suit to the present one before the High Court of the Federal Capital Territory in Suit No FCT/HC/CV/1479/2014. Without these documents, this Court will have to enter into the realm of speculation and conjecture to determine the issue of whether this present suit constituted a multiple action of that suit. This Court is not empowered to so act – Olufeagba Vs Abdur-Raheem supra. The duty of the Court is to decide cases based on real and actual facts and not on hypothetical facts – In Re: Ya?adua (2011) 17 NWLR (Pt. 1277) 567.The records of appeal do not bear out the case of the Respondent that this present action constitutes a multiple action of Suit No FCT/HC/CV/1479 /2014.

The Court processes that are in the records of appeal pertain to Suit No FHC/PH/CS/12/2014 which was commenced at and concluded by the Federal High Court in Port Harcourt, Rivers State and Suit No FCT/HC/M/414/2014 commenced

in the High Court of the Federal Capital Territory. A look at the processes in the two suits show that the Appellants were not parties to either of the actions and the subject matter of the two actions was the leadership tussle amongst the National Executive of the Independent Petroleum Marketers Association of Nigeria, and they had nothing to do with the dissolution of the Executive of the Kano Depot Unit of the Association, which is the subject matter of the present action. The fact that the Appellants were aware of the matter, Suit No FHC/PH/CS/12/2014, and the fact that they congratulated the winner of the case did not make their present action a multiple action of that matter. The two suits, Suit No FHC/PH/CS/12/2014 and Suit No FCT/HC/M/414/2014 did not constitute this present suit into an abuse of process – Nwaigwe Vs Federal Republic of Nigeria (2009) 16 NWLR (Pt. 1166) 169.

With regards to the criminal complaint filed before the Magistrate Court 6, Gidan Murtala Kano, it is obvious from the letter of the Magistrate to the Assistant Inspector General of Police, reproduced above, that the criminal complaint had been dealt with and that the

Magistrate had refused to entertain it by reason of the fact that this present suit was already before the High Court; this was on the 6th of August, 2014, before the Respondent filed the notice of preliminary objection in November 2014. It is trite law that what constitutes an abuse of process is not the commencement of another suit with similar reliefs, on similar grounds and against the same parties during the pendency of an earlier suit, but the commencement of the second suit with the intention of prosecuting both suits. Thus the Courts have held that where the earlier suit is discontinued or dispensed with, even if this was done after the commencement of the second suit, there is no abuse of process – Ikhine Vs Edierodie (1996) 2 NWLR (Pt. 431) 468, The M.V. “S. Araz” Vs Scheep (1996) 5 NWLR (Pt. 447) 204; Ikhine Vs Edierodie (2001) 18 NWLR (Pt. 745) 466; Tomtec (Nig) Ltd Vs Federal Housing Authority (2009) 18 NWLR (Pt; 1173) 358. The criminal complaint filed before the Magistrate Court did not thus constitute this present suit into an abuse of process.
?
I am unable to find any basis in the records of appeal to support the finding of the lower Court that

this suit was a multiple action and thus amounted to an abuse of process. A decision of a Court that is not predicated on the facts presented by parties before it can only have basis in conjectures and imagination of the Court. Such a decision cannot amount to a credible and good decision. It is a perverse decision and it is liable to be set aside.

It is for these reasons, and fuller exposition of the law contained in the lead judgment that I also find merit in this appeal and I allow it. I hereby set aside the decision of the High Court of Kano State contained in the Ruling delivered in Suit No K/274/2014 by Honorable Justice Ibrahim Umar on the 296 of December 2014. I remit the case file to the Chief Judge of Kano State for assignment to another Judge to consider the merits of the case of the Appellants. I abide by the order on costs in the lead judgment.

Appearances:

THEODORE (JNR) EZEOBI, ESQ. WITH HIM, ABUBAKAR MUHAMMAD, ESQ.For Appellant(s)

G.O. UZU, ESQ.For Respondent(s)

Appearances

THEODORE (JNR) EZEOBI, ESQ. WITH HIM, ABUBAKAR MUHAMMAD, ESQ.For Appellant

AND

G.O. UZU, ESQ.For Respondent