ALHAJI MUSA SULEIMAN v. HON. SABO NAKUDU& ORS
(2018)LCN/12029(CA)
In The Court of Appeal of Nigeria
On Monday, the 6th day of August, 2018
CA/K/57/2018
RATIO
COURT AND PROCEDURE: ABUSE OF COURT PROCESS
“The sustainability and or applicability of the principles of an abuse of Court process in the administration of justice by the courts are (is) predicated on the following:
(i) multiplicity of suits in one or more Courts
(ii) between the same parties or opponents
(iii) on same subject matter, and
(iv) on same or involving same issues
See Umeh v. Iwu (2008) 8 NWLR (Pt. 1089) P. 225 @ 245; Saraki v. Kotoye (1992) 9 NWLR (Pt. 156) @ 189; Okorodudu v. Okoromadu (1977) 3 S.C 21 and Onyeabuchi v. I.N.E.C. (2002) 8 NWLR (Pt. 769) 417.” PER IBRAHIM SHATA BDLIYA, J.C.A.
COURT AND PROCEDURE: EXERCISE OF JUDICIAL DISCRETION
“That such exercise of discretion by the judge must be judicially and judiciously as enunciated in the cases of Azubuike v. PDP (2014) ALL FWLR (Pt. 732) P. 1651 and Aliyu v. Intercontinental Bank Plc. (2013) ALL FWLR 702 P. 1810 @ 1818. As to when an exercise of discretion has been carried out judicially and judiciously, counsel cited and relied on the principles of law set out in Obaro v. Hassan (2013) ALL FWLR (Pt. 687) P. 687 @ 673, that both parties to the dispute must be accorded fair hearing in the proceedings of the Court before any decision is taken. The provisions of Section 36(1) of the 1999 Constitution (Amended),was cited to reinforce the desirability of the observance of fair hearing in the adjudication processes…A decision of a Court of law is perverse when: (a) it is speculative and not based on any evidence or (b) the Court took into account matters which ought not to have considered or (c) the Court ignored the obvious in arriving at the decision. See Osuji v. Ekeocha (2009) 16 NWLR (Pt. 1166) P. 81. A perverse decision is liable to be set aside. See Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) P. 360; Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) P. 1 and Yaro v. Arewa Construction Ltd (2007) 17 NWLR (Pt. 1063) P. 333 @ 373.” PER IBRAHIM SHATA BDLIYA, J.C.A.
FUNDAMENTAL RIGHT: RIGHT TO FAIR HEARING
“As to whether the appellant was denied fair hearing in the proceedings conducted before the lower Court; Section 36(1) of the 1999 Constitution (amended) provides as follows: ‘In the determination of his Civil rights and obligations, including any question or determination by or against any government or an authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such a manner as to ensure its independence and impartiality.'” PER IBRAHIM SHATA BDLIYA, 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
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
ALHAJI MUSA SULEIMAN Appellant(s)
AND
1. HON. SABO NAKUDU
2. ALL PROGRESSIVE CONGRESS (A.P.C)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the ruling of the Federal High Court (Dutse Division) (the lower Court) in Suit No. FHC/OT/CS/06/2015 delivered on the 9th of June, 2016, by YAHUZA, J. The historical background facts leading to the commencement of Suit No. FHC/DT/CS/06/2015, at the lower Court are that, the appellant was an aspirant in the Primary Election conducted by the 2nd respondent for the selection of a candidate to represent it in the 2015 General Elections for the South-West Senatorial District of Jigawa State.
The appellant alleged he was the only candidate for the 2nd respondent, and was screened by a committee set up therefor, and was found legible, fit and proper to contest the Primary Election for selection of a candidate for the said Senatorial District. The appellant being the sole candidate emerged elected to represent the 2nd respondent of the 2015 General Elections for the South-West Senatorial District. However, the 2nd respondent forwarded the name of the 1st respondent to the 3rd respondent as its candidate for the General Election in the Jigawa South-West Senatorial District.
The appellant was aggrieved by the action of the 2nd respondent, and he initiated Suit No. FHC/DT/CS/06/2015 before the lower Court, Abuja Division, which was later transferred to the Dutse Division, in Jigawa State. The 1st and 2nd respondents filed Notice of Preliminary Objection to the competence of the suit, that the lower Court lacked the jurisdiction to adjudicated and determine same. The lower Court, after a dispassionate consideration of the Preliminary Objection of the 1st and 2nd respondents, struck out the appellant’s action (suit) for being incompetent. Peeved and piqued by the striking out of his suit filed an appeal to this Court, challenging the decision of the lower Court, which is Appeal No. CA/K/259/2015 before this Court.
On the 6th of October, 2015, the appellant withdrew Appeal No. CA/K/259/2015, and same was dismissed pursuant to Order 11 Rule 5 of Rules of Court, 2011. On 30th of December, 2015 the appellant filed an application for an order to relist suit No. FHC/DT/CS/06/15. On the 9th of June, 2016, the lower Court refused and dismissed the application to relist Suit No. FHC/DT/CS/06/2015, having been withdrawn and struck out by this Court in Appeal No. CA/K/259/2015. The appellant has therefore filed Appeal No. CA/K/57/2018, to this Court challenging the decision of the lower Court, dismissing the application to relist the said suit in the ruling delivered on the 9th of June, 2016.
The appellant filed brief of argument on the 15th of February, 2018. The 1st and 2nd respondents filed brief of argument on the 23rd of May, 2018 out of time which was deemed properly filed on the 24th of same month. The appellant filed a Reply brief on the 28th of May, 2018. The 3rd respondent did not file brief of argument.
A Notice of Preliminary Objection to the competence of this Court to adjudicate and determine Appeal No. CA/K/57/2018 was filed on the 25th of May, 2018, on the following grounds:
(a) That Appeal No. CA/K/57/2018 filed on the 4th day of December 2017 vide Notice of Appeal dated 30th November 2017 is an abuse of Court process as this Court on the 6th day of October, 2015 dismissed the same subject/reliefs sought by the Appellant over the same parties in Appeal No. CA/K/259/2015.
(b) That the Appellant withdrew Appeal No. CA/K/259/2015 after the briefs of the appellant and the respondents were filed and exchanged, and the appeal was fixed for hearing.
(c) That this Honourable Court dismissed Appeal No. CA/259/2015 between the same Appellant and the Respondents after issues had been joined; that is being LITIS CONTESTATIO.
(d) That the filing and hearing of Appeal No. CA/K/57/18 before this Honourable Court is tantamount to relisting the earlier dismissed Appeal No. CA/K/259/2015.
(e) That the subject matter between the parties have become Res Judicata, therefore it is only subject of Appeal to the Supreme Court.
Dr. N. A. Aliyu Esq, of learned counsel to the 1st and 2nd respondents, canvassed argument on the preliminary objection to the competency of Appeal No. CA/K/57/2018, on pages 3 to 6 of the respondent’s brief of argument. In arguing the preliminary objection, counsel relied on 3 grounds, which are not dissimilar to those grounds contained in the Notice of Preliminary Objection.
Counsel further referred to the reliefs sought in Appeal No. CA/K/57/2018 and No. CA/K/259/2015, and submitted that the parties, prayers and reliefs in the two (2) appeals are identical, save additional wordings, which are of no effect on the same. It is counsel?s further submissions that a party, whether at the trial Court or the appellate Court, cannot relitigate over same Subject matter which has been earlier adjudicated upon, and a decision been taken by the Court, dismissing it. That in Appeal No. CA/K/259/2015, briefs were filed, issues joined and a date for the hearing been fixed. That the 1st and 2nd respondents’ counsel applied for the withdrawal of the appeal, which was granted and same was dismissed pursuant to Order 11 Rule 5 of Rules of Court, 2016.
Counsel cited and relied on the principles of law espoused in the case of Eronini v. Iheuko (1989) 2 NWLR (Pt. 107) P. 46 @ 60 wherein, it was held that a case which has been withdrawn and dismissed at a point of LITIS CONTESTATIO, cannot be relisted. That any party not satisfied can only appeal against the dismissal to the Apex Court, in that the suit or matter has become ‘res judicata’ as enunciated in the case of Balogun v. Ode (2007) 4 NWLR (Pt. 1023) P. 1.
On the Notice of Intention to contend that the judgment of the lower Court be affirmed on grounds other than those relied on by the learned judge, counsel relied on the arguments canvassed under issue 2 of the 1st and 2nd respondents brief of argument filed on the 23/8/18, but deemed properly filed on 24th of same month, and did urge this Court to sustain the Preliminary Objection, and consequently dismiss the Appeal No. CA/K/57/2018.
At this juncture, it has to be pointed out that arguments canvassed on pages 3 to 7, paragraphs 3.1 to 3.8 of the Reply brief, are not related to any issue or arguments contained in the 1st and 2nd respondents’ brief of argument. The law is trite, the function or purpose of a Reply brief is to refute, if any, the arguments in the respondents brief and controvert or dislodge same. It is very clear that the arguments in paragraphs 3.1 to 3.8 on pages 3 to 7 of the Reply brief are attacking the competency of the respondents’ brief of argument. Such an issue has not been canvassed in the 1st and 2nd respondents brief of argument.
The arguments canvassed in paragraphs 3.1 to 3.8 on pages 3 to 7 of the respondents brief of argument are therefore, hereby discontinued or discarded. See Onwudiwe v. FRN (2006) 10 NWLR (Pt. 988) P. 382 @ 424-425.
On the contention of learned counsel to the appellant that the Notice of Preliminary Objection to the competency of the appeal ought to have been filed separately, rather than being incorporated in the brief of argument, I think learned counsel is oblivious of the Notice of Preliminary Objection filed on the 25th of March, 2018. I hold that there is a valid and competent Notice of Preliminary objection filed on the 25th of May, 2018 by the 1st and 2nd respondents. Is Appeal No. CA/K/57/2018, an abuse of Court process’.
Learned counsel to the appellant contended that appeal No. CA/K/57/2018 is different from No. CA/K/259/2015, therefore, the former cannot be an abuse of Court process. That appeal No. CA/K/259/2015 is against the ruling of the lower Court delivered on the 23rd of June 2015, whereas the appeal No. CA/K/57/2018 is against the ruling delivered on the 9th of June, 2016. That the two (2) rulings are founded on different grounds and cause of action.
As to what constitutes an abuse of Court process, learned counsel enumerated the circumstances constituting same as enunciated inLadoja v. Ajimobi (2016) 10 NWLR (Pt. 1519) P. 87, and submitted that the features of an abuse of Court process have not been shown or established by the respondents, therefore, the preliminary objection cannot be sustained. Counsel did urge that same be dismissed, and the appeal be heard on its merit. What is an abuse of Court process? The law is trite, generally, an abuse of Court process contemplates multiplicity of suits between the same parties with regard to same subject matter on the same issue in same or another Court. The Courts, in a plethora of judicial decisions, have had defined or described the phrase or terminology ‘abuse of Court process’ or ‘abuse of judicial process’.
For instance in Umeh v. Iwu (2008) 8 NWLR (Pt. 225) @ 2450 the Supreme Courtper Muhammad, J.S.C. defined it thus:
”The term ‘abuse of Court process’ and ‘abuse of judicial process’, are one and the same thing. I once, observed that: ‘Abuse of Court process simply means that the process of the Court has not been used bona fide and properly. It also connotes the employment of judicious process by a party in improper use to the irritation of his opponent and the efficient and effective administration of justice.”
See the case of Expo. Ltd. v. Pafab Enterprises Ltd. (1992) 2 NWLR (Pt. 591) 449 @ 462 where it was stated that an abuse of Court process is a multiplicity of same action in same Court or even before another Court or Courts being pursued simultaneously by the plaintiff/applicant as the case may be.
Niki Tobi, J.S.C (of blessed memory) put it in these words in the case of Ntuks v. N.P.A. (2007) 13 NWLR (PT. 1051) p. 342) @ 419-420:
”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 mala fide 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 or 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.”
Alagoa, J.S.C. in the case of Ossiec v. N.C.P. (2013) 9 NWLR (Pt. 1360) P. 458 @ 477 said:
”What does the term abuse of Court process? mean” Different situations may constitute such an abuse. In Saraki v. Kotoye (1992)9 NWLR (Pt. 264) 156, this Court held the intention, purpose and aim of the person exercising the right the right to harass, irritate and annoy the adversary and interfere with the administration of justice as constituting such an abuse of Court process. Other situations include an application for adjournment by a party to an action to bring an application for leave to raise issue of fact already decided by the Court below – per Ogundare, J.S.C. in Alade v. Alemuloke (1988) 1 NWLR (Pt. 69) 207. The situation that may give rise to an abuse of Court process are indeed inexhaustive but may be said to refer to any of several situations where the process of Court has not been used or resorted to fairly, properly, honestly to the detriment of the other party.”
The sustainability and or applicability of the principles of an abuse of Court process in the administration of justice by the courts are (is) predicated on the following:
(i) multiplicity of suits in one or more Courts
(ii) between the same parties or opponents
(iii) on same subject matter, and
(iv) on same or involving same issues
See Umeh v. Iwu (2008) 8 NWLR (Pt. 1089) P. 225 @ 245; Saraki v. Kotoye (1992) 9 NWLR (Pt. 156) @ 189; Okorodudu v. Okoromadu (1977) 3 S.C 21 and Onyeabuchi v. I.N.E.C. (2002) 8 NWLR (Pt. 769) 417.
Whether appeal No. CA/K/57/2018 is an abuse of Court process or not, I am of the view that the parties, subject-matter the cause of action and the reliefs sought in the two appeals are to be examined. In appeal No. CA/K/259/15, the particulars are as stated on pages 422 to 427 of the printed record of appeal as follows:
a. To allow the appeal and set aside the Ruling delivered by Justice Sabi?u Yahuza of the Federal High Court Jigawa State delivered on the 23rd June, 2015.
b. For the Court of Appeal to exercise its power under Section 16 of the Court of Appeal to decide the merit of the two application filed by the Appellants (sic) to re-open the case in order to respond to the preliminary objection argued by the Respondents and then to:
c. To remit the case to the Chief Judge of the Federal High Court to another Honourable Judge of the Federal High Court to take the response of the appellant (sic) to the preliminary objection together with the originating summons. See pages 422-427, particularly pages 426 of the Appeal Record.
In appeal No. CA/K/57/2018, the particulars are as recorded on pages 498 to 502 of the printed record of appeal, which are thus:
i. AN ORDER allowing the Appeal.
ii. AN ORDER setting aside the ruling of the trial Court.
iii. AN ORDER invoking Section 16 of the Court of Appeal Act to relist, access, evaluate and determine the suit of the appellant as if it were originally constituted before this Honourable Court.
ALTERNATIVELY:
i. AN ORDER remitting the suit back to the Chief Judge of the Federal High Court to re-assign the matter to another Judge of the Federal High Court other than Justice S. Yahuza for trial.
ii. ANY OTHER ORDER(S) the court may deem fir to make in the interest of justice.
It is to be noted that though the parties, and reliefs sought in the two appeals are same but the cause of action are different and distinct. In Appeal No. CA/K/259/2015, the cause of action is the striking out of suit No. FHC/DT/CS/O6/2015 on 9/6/2015 for being incompetent on the ground that the appellant lacked the ?locus standi? in instituting same before the lower Court. Whereas in Appeal No. CA/K/57/2018, the cause of action is the refusal and dismissal of an application filed on the 30th of December, 2015, for orders to set aside the ruling delivered on the 23rd of June, 2015, and to relist the suit struck out. Appeal No. CA/K/259/2015 is against the ruling of the 23rd of June, 2015, whereas appeal No. CA/K/57/2018, is against the ruling of 9th/6/2016.
Two suits can be initiated before same or different Court without the latter being an abuse of Court process as espoused in the case of C.O.M INC. v. Cobham (2006) 15 NWLR (Pt. 1002) P. 283 @ 305, wherein, it has been held that, it is not the law, that once a party files another suit before another Court on the same subject matter, there is an abuse of Court process. An act can give rise to different suits. A subject matter may very well give rise to different rights. In other words, different suits can emanate from the same subject matter but with different rights, reliefs and cause of action.
What constitutes an abuse of Court Process have been enunciated in the case of Ladoja v. Ajimobi (supra). None of the features of an abuse of Court process has been shown or established to render Appeal No. CA/K/57/2018 an abuse of Court process. The preliminary objection to the competency of Appeal No. CA/K/57/2018 for being an abuse of Court process cannot therefore be sustained. Same is dismissed. The Appeal No. CA/K/57/2018, is to be considered hereunder on its merit.
The appellant distilled 2 Issues for determination in the appeal as contained on page 6 of the brief of argument filed on the 15th of February, 2018, which are as follows:
(1) Whether the trial judge was right when he relied on the provisions of Order 11 Rule 5 of the Court of Appeal rules and the case of SETRACO NIGERIA LTD V. JOSEPH KPAJI (2013) LPELR 20539 CA in refusing the Appellant’s application to relist Suit No.FHC/DT/CS/06/ 2015? (Distilled from ground one)
(2) Whether the refusal to relist the Appellant’s Suit No: FHC/DT/CS/06/2015 by the trial judge amounts to a denial of fair hearing (Distilled from ground one)
The 2 Issues for determination contained on page 6 of the 1st and 2nd respondents’ brief of argument are not dissimilar to those contained in the appellant’s brief of argument. The two sets of Issues for determination in both briefs of argument are intertwined and dovetailing, such that the determination of one set would also determine the other, which would ultimately determine the appeal one way or the other. The 2 Issues are hereunder taken and resolved simultaneously. ABBAS AJIYA Esq, of learned counsel, who settled the appellant’s brief of argument, did contend that the learned judge of the lower Court erred in law by relying on the provisions of Order 11 Rule 5 of Court of Appeal Rules 2016, in refusing to relist Suit No. FHC/DT/CS/062015, in the application filed on the 30th of December, 2015.
That the said Order 11 Rule 5, of the Court of Appeal Rules applies only in matters before the Court of Appeal, not to matters before the lower Court. It is further submitted that the withdrawal of Appeal No. CA/K/259/2015, having been orally made not by written Notice to the Registrar of the Court, cannot debar the appellant from filing a fresh application to the lower Court to relist Suit No. FHC/DT/CS/06/2015. The principles of law enunciated in the case of Anifowoshe Ogunpola v. Oasis Savings & Loans Ltd (2007) ALL NWLR (Pt. 357) P. 935 @ 935 cited to buttress the submissions supra.
On the principles of law espoused in the case of Setraco v. Kpaji (2017) 5 NWLR (Pt. 1558) it has been submitted that same cannot be relied on to render the application of the application filed on the 30/12/15 incompetent, for the facts, issues and circumstances of each case are distinguishable. On the principles of law on when a Court can exercise its discretion to relist a suit which has been struck out for want of diligent prosecution, counsel referred to Order 19 Rule (4) of the Federal High Court (Civil) Procedure/Rules, 2009, and did submit that a judge of the Federal High Court has a discretion in whether to grant an order to relist a suit struck out, or not.
That such exercise of discretion by the judge must be judicially and judiciously as enunciated in the cases of Azubuike v. PDP (2014) ALL FWLR (Pt. 732) P. 1651 and Aliyu v. Intercontinental Bank Plc. (2013) ALL FWLR 702 P. 1810 @ 1818. As to when an exercise of discretion has been carried out judicially and judiciously, counsel cited and relied on the principles of law set out in Obaro v. Hassan (2013) ALL FWLR (Pt. 687) P. 687 @ 673, that both parties to the dispute must be accorded fair hearing in the proceedings of the Court before any decision is taken. The provisions of Section 36(1) of the 1999 Constitution (Amended),was cited to reinforce the desirability of the observance of fair hearing in the adjudication processes.
Concluding, counsel did submit that the learned judge of the lower Court did not accord the appellant fair hearing in the proceedings leading to the refusal and dismissal of the application seeking for an order to set aside the ruling of 9th of October, 2015, and to relist suit No. FHC/DT/CS/06/2015. This Court has been urged to resolve the 2 Issues in favour of the appellant, set aside the ruling of 9/6/16, and to apply the provisions of Section 16 of the Court of Appeal Act, to adjudicate on the application filed on 30/12/15 and grant the prayers by the appellant, accordingly.
Dr. N. A. Aliyu, Esq, of learned counsel to the 1st and 2nd respondents, contended that appeal No. CA/K/259/2015 was filed on the 18th of June, 2015, and by 6th of October, parties had filed briefs of argument and a date for hearing of same was fixed. However, on the 6thof October, learned counsel to the appellant orally applied to withdraw the appeal. The lower Court granted the application, and dismissed the appeal pursuant to Order 11 Rules 5 of Court of Appeal Rules, 2016. It is counsel’s further submission that as at 6/10/2015, the parties had reached the point of ‘Litis Contestatio’, therefore any withdrawal of the appeal, means the dismissal of same under Order 11 Rule 5 of Rules of the Court of Appeal.
The principles of law espoused in the case of YSG. Motors Ltd v. Okonkwo (2010) 15 NWLR (Pt. 1217) P. 524 @ 531 cited and relied on to reinforce the submissions supra. That the dismissal of the appeal on the 6th of October, 2015 terminated both the Appeal No. CA/K/259/2015 and the suit FHC/DT/CS/06/2015, filed before the lower Court. In view of the foregoing, learned counsel contended, that the lower Court was right when he refused and dismissed the application filed on the 30th of December, 2015, seeking for an order to set aside the ruling of 6/10/2016 and to relist Suit No. FHC/DT/CS/06/2015.
Counsel further did submit that by the principles of law espoused in Anifowoshe Ogunpola v. Oasis Savings Ltd (2007) ALL FWLR (Pt. 357) P. 935 @ 952, when an appeal is withdrawn after having been entered at the Court of Appeal, same cannot be relisted. The principles of law enunciated in the cases of Edozien v. Edozien (1993) NWLR (Pt. 272) P. 678; and Eronini v. Eheuko (1989) 2 NWLR (Pt. 101) @ 46 @ 60 were cited in reinforcement of the submissions supra. Counsel therefore submitted that the learned judge of the lower Court was right in refusing to relist suit No. FHC/DT/CS/06/2015, as sought for by the appellant in the application filed on the 30th of December, 2015.
On the exercise of discretion by the learned judge of the lower Court in striking out suit No. FHC/DT/CS/06/2015 on the 23rd of June, 2015, counsel did content that such exercise of discretion must be judicially and judiciously. It is further submitted that, having regard to the attitude of the appellant before the lower Court, the duration from 6th of June, 2015 to 30th of December, 2015, when the application for relisting was filed, there was no basis for the granting of the order to relist the suit which was struck out by the lower Court. That the learned judge of the lower Court exercised his discretion properly, and rightly refused the application to relist the suit before the lower Court. The principles of law espoused in the cases of Ajani v. Giwa (1986) 1 NWLR (Pt. 32) P. 796; Ehinlawo v. Oke (2008) 6. 7. S.C. P. 123 and UBA Plc. V. BTL Industries Ltd (2005) 4 S.C. P. 40 among others, were cited to reinforce the submissions supra.
On the effect of dismissing appeal No. CA/K/259/2015 by the lower Court on the 23/6/2015, counsel pointed out that both the appeal and suit FHC/DT/CS/06/2015, ceased to exist in law therefore as at 30/12/15, there was no pending suit which could have been relisted by the lower Court. The principles of law enunciated in the case of Anah v. Anah (2008) 9 NWLR (Pt. 1091) P. 75 @83, and Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) P. 156 @ 189 was cited to buttress the submissions supra. Concluding, learned counsel did urge that issues 1 and 2 be resolved against the appellant in view of the adumbrations supra.
Without much ado, let me deal first of all, with the principles of law enunciated by the Apex Court in the case of Setraco (Nig.) Ltd. v. Kpaji (2017) 5 NWLR (Pt. 1558) P. 280, which learned counsel to the 1st and 2nd respondents relied heavily on to buttress their submissions that same supported their stand that Appeal No. CA/K/57/2018, is incompetent, therefore an abuse of Court process in view of the withdrawal of Appeal No. CA/K/259/2015 by the appellant, and thereafter filed an application for relisting of Suit No. FHC/DT/CS/06/2015, before the same Court. It must be noted that Appeal No. CA/K/259/2015 was struck out by this Court on the 6th of October, 2015 upon the application of learned counsel to the appellant to withdraw same, notwithstanding the filing of briefs by parties, and appeal fixed for hearing. Order 11 Rule 5 of 2011 Court of Appeal Rules, provides thus:
”An appeal which has been withdrawn under this Order whether with or without an Order of this Court, shall be deemed to have been dismissed”.
It cannot be disputed that the provisions of the Court of Appeal Rules, are only applicable to regulate proceedings before the COURT OF APPEAL, on other Courts. In Setraco (Nig) Ltd v. Kpaji, the Apex Court, was dealing with the provisions of Order 11 of the Court of Appeal Rules 2011, which provisions are not dissimilar to the provisions of Order 11 Rules 5 of the 2011 and 2016 Rules of this Court. In Setraco (Nig.) Ltd. v. Kpaji supra, the Apex Court held that an appeal which has been withdrawn and subsequently struck out or dismissed when, the point of litis contestatio has been reached, cannot be relisted. In other words, after briefs of argument have been exchanged by the parties whereby issues between them became crystallized, litis contestation, can be deemed to have been reached. A withdrawal from that point in time must, as an inflexible rule, lead to the dismissal of the appeal.
The Apex Court further held that, an appeal which has been withdrawn under Order 11 Rule 5 of the Court of Appeal Rules, 2011 (then), whether with or without an order of the Court, shall be deemed to have been dismissed. The effect of the withdrawal notice filed was to terminate the appeal against the judgment of the High Court with or without an order of Court. The Court of Appeal having dismissed the appeal by virtue of Order 11 Rule 5, it was only a respondent to such dismissed appeal who had given notice under Order 9 on fulfilling the conditions prescribed in that Rule who can continue with the appeal. There is no provision enabling an appellant to relist an appeal so dismissed. Therefore under the rules, an appeal that has been validly withdrawn and dismissed, cannot again be entered for hearing. SeeEzomo v. A. G. Bendel State (1986) 4 NWLR (Pt. 36) 448. From the foregoing it is obvious that the principles of law enunciated in the case of Setraco Nig. Ltd. v. Kpaji supra, only applies to appeals before the Court of Appeal. The provisions of Order 11 Rule 5 of Court of Appeal Rules, and the principles of law espoused in Setraco Nig. Ltd. supra, cannot be application to proceedings before any other Court, including the High Court of Justice. I am in full agreement, with learned counsel to the appellant that the reliance of learned counsel, on the argument canvassed in respect of whether the learned judge of the lower Court was justified in relying on principles of law espoused in Setraco (Nig.) Ltd v. Kapji supra, in refusing or declining to relist Suit No. FHC/DT/CS/06/2015, is totally misconceived.
On page 465, of the printed record of appeal, the learned judge of the lower Court, in striking out Suit No. FHC/DT/CS/06/2015 reasoned thus:
”It is the contention of the learned counsel that the plaintiff has no capacity to initiate this case as it is presently constituted. Therefore, the most Honourable thing to do in this case is to strike the suit for being incompetent. So this suit is hereby struck out for reasons stated above.”
In his ruling on the 9th of June, 2016 in respect of the application for an order to set aside the said ruling and to order for relisting of the suit FHC/DT/CS/06/2015, the learned judge held thus as recorded on page 485 of the printed record of appeal:
”However, the appeal also suffered a setback when on 6th October, 2015 counsel to the plaintiff/applicant announced to the Court of Appeal that they have decided to withdraw the appeal on his own volition.
Subsequently the Court of Appeal made bench ruling dismissing the suit pursuant to Order 11 Rule 5 of the Court of Appeal Rules.
By this application, the plaintiff wants the matter relisted pursuant to Order 19 Rule 4 (1) and (3) as well as Order 56 Rules 1 of the Federal High Court (Civil Procedure) Rules 2009.
However, 1st Defendant filed an address supported by a nine paragraphs counter affidavit dated 22/1/2016 and annexed two annexed as Exhibit NKD1 and NKD2 and submitted that they are placing reliance in the decision of the Court of Appeal in Setraco Nigeria Ltd. v. Joseph Kpaji (2013) LPELR 20539 CA. By Exhibit NKD2 the Court of Appeal has dismissed this suit pursuant to Order 11 Rule 5 of the Court of Appeal Rules. And in the Kpaji?s case the Court of Appeal states:
”Now Order 11 Rule 5 is of great significance. It provides that an appeal which has been withdrawn (as in this case) whether with or without an order of this Court shall be deemed to have been dismissed. And Order 11 does not make provision for a party whose case is so dismissed to get it relisted. He cannot file fresh appeal either. So the dismissal is absolute.”
It is on the above principle that this motion for reenlistment must fail. I therefore refuse it for reasons stated above.
The learned judge of the lower Court was therefore not right in relying on the provisions of Order 11 Rule 5 of the Court of Appeal Rules and the principles of law enunciated in the case ofSetraco Nig. Ltd. v. Kpaji (2013) 5 NWLR (Pt. 1558) P. 280 in dismissing the application of the appellant for an order to set aside the ruling of 9th of June, 2016, wherein an order to relist Suit FHC/DT/CS/06/2015, was sought and refused.
There was no application before the lower Court for an order relisting Appeal No. CA/K/259/2015, which was withdrawn and dismissed on the 23rd of June, 2015. What was before the lower Court, is application for an order to set aside the ruling of 23/6/2015 and an order to relist Suit FHC/DT/CS/06/2015. The learned judge refused to grant the orders sought, hence the filing of appeal No. CA/K/57/2018 before this Court, which application was dismissed as aforementioned in this judgment. Appeal No. CA/K/57/2018 has a different cause of action and subject-matter as No. CA/K/259/2015. I do not agree with the contention that the withdrawal and dismissal of Appeal No. CA/K/259/2015, automatically tantamount to the termination of the judgment in suit No. FHC/DT/CS/06/2015 before the lower Court. It is my view that the dismissal of the aforesaid appeal only brought to an end the proceeding in appeal No. CA/K/259/2015 and there cannot be any further proceedings on same appeal before this Court, save an appeal to the Apex Court.
It must be noted that the dismissal of appeal No: CA/K/259/2015, cannot nullify the ruling of the lower Court delivered on 23/6/2015, whereby Suit No. FHC/DT/CS/06/2015, was struck out. That ruling still subsists and remains valid until set aside by a Court of competent jurisdiction. The appellant had the right to appeal against the ruling of 9/6/16 wherein his application for an order to relist the suit was refused and dismissed. The reliance on Order 11 Rule 5 of the Court of Appeal Rules 2011 (2016), to dismiss the application of the appellant is therefore perverse because the learned judge did rely on any applicable principles of law when he dismissed the application, other than relying on Order 11 Rule 5 of Court of Appeal Rules 2011, which was not the applicable Rules before that Court. It is for the foregoing reasons that I am of the view that the ruling of the lower Court on 23/6/2015 and 9/6/2016 are perverse.
A decision of a Court of law is perverse when: (a) it is speculative and not based on any evidence or (b) the Court took into account matters which ought not to have considered or (c) the Court ignored the obvious in arriving at the decision. See Osuji v. Ekeocha (2009) 16 NWLR (Pt. 1166) P. 81. A perverse decision is liable to be set aside. See Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) P. 360; Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) P. 1 and Yaro v. Arewa Construction Ltd (2007) 17 NWLR (Pt. 1063) P. 333 @ 373.
As to whether the appellant was denied fair hearing in the proceedings conducted before the lower Court; Section 36(1) of the 1999 Constitution (amended) provides as follows:
”In the determination of his Civil rights and obligations, including any question or determination by or against any government or an authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such a manner as to ensure its independence and impartiality.”
The learned judge did not therefore exercise his discretion judicially and judiciously when he refused to grant the application for an order to set aside the ruling of 9/6/16 and to relist Suit No. FHC/DT/CS/06/15. Where a discretion is wrongly exercised, as in this case, an appellate Court has a duty to interfere in the interest of justice and fairness. For as pointed in Azubuike v. PDP (2014) ALL FWLR (Pt. 732) P. 1651 @ 1653:
”Discretion is the act of being discrete. An Appellate Court will be reluctant to interfere with the discretionary power of the trial Court unless it was made upon wrong principles. In the instance case, where the trial Court wrongly exercised its discretion by refusing the grant of the 1st respondent’s application to be joined as a party to the action, the Court of Appeal rightly set aside its decision based on it.?(Underlining for emphasis).
The learned judge of the lower Court wrongly relied on and applied the provisions of Order 11 Rule 5 of the Court of Appeal Rules 2011, and the principles of law enunciated in Setraco (Nig) v. Kpaji supra when he dismissed the application of the appellant in the application filed on the 30th of December, 2015. Also, if the learned judge had exercised his discretion discretly, he would not have dismissed the appellant?s application as he did. Having due regards to the application filed on the 30th of December, 2015, the grounds relied on and the affidavit in support of, the learned Judge of the lower Court did not exercise his discretion judicially and judiciously, when he refused to grant the Orders sought for in the ruling delivered on the 9th of June, 2016, consequently, I resolve the 2 issues for determination in the appeal in favour of the appellant. In the result, the appeal succeeds and the ruling of the lower Court delivered on the 9th of June, 2016, is hereby set aside.
Learned counsel to the appellant, in the brief of argument, did urge that this Court should apply the provisions of Section 16 of the Court of Appeal Act, and determine the application filed on the 30th of June, 2015 in view of the urgency of the matter being a pre-election dispute. Broadly speaking, the provisions of Section 16 of the Court of Appeal Act confers legal power on the Court of Appeal to make any order which the Court below could have made in the interest of justice. This presupposes that the Court of Appeal must have been vested with jurisdiction to entertain the suit and the Court below it also had jurisdiction in the matter but failed to exercise it. The provision does not confer on the Court of Appeal the power to make an order which the trial Court could not have made in resolving the dispute between the parties in the suit before it. The purpose of Section 16 is simply to obviate delayed justice.
There are conditionalities for the invocation of the powers vested in this Court under Section 16 of the Court of Appeal Act, which are:
(a) The lower Court or trial Court must have the legal power to adjudicate in the matter before the appellate Court can entertain it;
(b) The real issue raised up by the claim of the appellant at the lower Court or trial Court must be seen to be capable of being distilled from the grounds of appeal;
(c) All necessary materials must be available to the Court for consideration;
(d) The need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and
(e) The injustice or hardship that will follow if the case is remitted to the Court below must clearly manifest itself.
In the case of Obi v. INEC (2007) 11 NWLR (Pt. 1046) P. 436 @ 639-640, the Apex Court, Per ADEREMI J.S.C, had had a vivid elucidation of the provisions of Section 16 of the Court of Appeal Act (which is impari materia with S. 22 of the Supreme Court Act, 1999) as to its essence, purport and import and its applicability by this Court in the adjudication process. The learned Noble Lord, enunciated that:
”I have taken a critical examination of the contents of the originating summons used in initiating the case; everything needed to enable the Court below (Court of Appeal) to invoke the provisions of the aforesaid Section 16 and to proceed to determine the main issue in the case was present. The Court below erroneously failed to take the advantage of the aforesaid provisions of the Court of Appeal Act. Would this then be the end of the road for a citizen who has approached the citadel of justice seeking remedies for wrong done to him? I think not. The law must not and cannot be wanting in dispensing justice. And since justice according to law is the pre-occupation of a judex, a Court must always rise up to such an occasion. It is to meet this exigency that Section 22 of the Supreme Court Act, Cap. 424, Laws of the Federation of Nigeria, 1999, was enacted to confer general powers on this Court to do all such things that will bring about unalloyed justice. I pause to say that the conditionalities which I have stated above that must be in pace for the invocation of the provisions of Section 16 of the Court of Appeal Act aforesaid are also the condition precedent for the invocation of the provisions of Section 22 of the Supreme Court Act”.
Ordinarily, I would not have resorted to the provisions of Section 16 of the Court of Appeal Act, had it not been that the dispute between the appellant and the respondents at the lower Court was a pre-election matter, whereby, time is of the essence requiring a speedy disposal of same within the possible shortest time.
The application by the appellant can be found on pages 336 to 337 of the printed record of appeal. The grounds relied on and the affidavit in support thereof, are on pages 337 to 340 of the record of appeal. I have considered the grounds relied on the affidavit in support together with the submissions of learned counsel to the parties. The law is trite, any application struck out by a Court of law can be relisted before same Court or any other Court with jurisdiction, where the circumstances of the case so requires. In Eastern Breweries Plc v. Inuen (2003) 3 NWLR (Pt. 650) @ 662, when considering an application for an order to relist a suit which was struck out, it was held that:
”A suit struck out may be relisted with the leave of the Court if the circumstances warrant doing so. An application to restore the suit will be by Motion on Notice. It is in the discretion of the Court whether or not to relist the suit depending on the ground upon which the suit is struck out and other circumstances of the…
It is settled that the determination of the cases, a Court aims always at achieving substantial justice for the parties and therefore if the exercise of judicial discretion, the primary objective of the Court must be the attainment of substantial justice. Each party has a right to have the dispute determined upon the merits and the Courts should do everything to favour the fair trial of the dispute between the parties”.
Similarly, in Owoh v. Asuk (2008) All FWLR (Pt. 429) P. 449 @ 459, it was enunciated that:
where the claim or rights of the parties have not been examined or looked into by the trial Court and appropriate findings made thereon resulting in a determination, these claims or right effectively remains pending and can be revived by any of the parties in any other Court of concurrent jurisdiction or even the same Court that handed down the striking out order for relisting under the appropriate rules of the trial Court on such terms as may be granted on application
Bearing in mind, the principles of law espoused in the cases referred to supra, coupled with the grounds relied on, together with depositions contained in the affidavit in support of the application, I am of the firm view that the application of the appellant filed on the 30th of December, 2015, seeking for the orders set out therein, ought to be granted.
Accordingly, I hereby grant same, and make an order relisting suit No. FHC/DT/CS/06/2015, before the lower Court for hearing on the merit by a Judge, of that Court, other than Justice Sabiu Yahuza, J. In view of the urgency of the matter, (being a pre election matter) same is to be given an accelerated hearing. I order that the relisted suit be remitted to the lower Court without undue delay. I make no order as to costs.
UWANI MUSA ABBA AJI, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother, Ibrahim Shata Bdliya, JCA just delivered.
My learned brother exhaustively considered the issues for determination and I agree that the appeal is meritorious. The appeal succeeds and it is also allowed by me. Consequently, the suit is hereby remitted to the Chief Judge of the Federal High Court for accelerated hearing by another judge other than Hon. Justice Sabiu Yahuza.
I endorse the order as to costs.
OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have had the privilege of reading the judgment of my learned brother IBRAHIM SHATA BDLIYA JCA and I agree with his reasoning and conclusions. Indeed by relying on Order 11 Rule 5 of the Court of Appeal Rules 2011 which does not govern the rules of procedure of the Federal High Court and which has nothing to do with the application before him, the learned trial judge was barking up the wrong tree and came to a wrong decision when he refused to relist the matter before him. His decision was perverse. See ATOLAGBE V. SHORUN (1985) NWLR PART 2 p. 360. I also agree with my learned brother that the suit before the lower Court be re-listed and heard on its merits by a judge other than the learned trial judge.
Appearances:
No AppearanceFor Appellant(s)
Dr. Nasir Aliyu, Esq. with him, Prof. Isah Muhd, Esq. and Abdullahi Ibrahim for 1st and 2nd Respondents.
Abdul Aziz Sani, Esq. for 3rd RespondentFor Respondent(s)
