APC & ORS v. GARBA & ORS (2020)

APC & ORS v. GARBA & ORS

(2020)LCN/14692(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Thursday, October 15, 2020

CA/S/88/2020

RATIO

ELECTION: DEFINITION OF PRE-ELECTION MATTER

That having been settled, a convenient point, perhaps, to begin at this stage is to first give a definition of what a “Pre-Election Matter’’ is all about. Section 285(14)(a) of the Constitution of Nigeria, 1999 as amended by the Fourth Alteration Act, No: 21 of 2017, clearly defines a “Pre-Election Matter” thus:
“For the purpose of this section, ‘Pre-Election Matter’ means any suit by;
(a) An aspirant who complains that any of the provisions of the Electoral Act or any of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for the conduct of party in respect of the selection or nomination of candidates for an election.”
It is important to note that the decisions of this Court in several matters are replete with definitions of the expression: “Pre-Election Matters.” In the case ofINEC & ANOR vs. ETENE (2013) LPELR-22108 this Court per GARBA, JCA had this to say on the subject:
“In everyday terms, pre-election matters are complaints in respect of issues which arise before and therefore precede the holding or conduct of an election. Post election matters on their part are matters which arise from or relate directly to the actual conduct of an election about which candidates and political parties who contested the election are dissatisfied with on any of the cognizable grounds stipulated in the Electoral Act.”
In yet another decision of this Court in the case of TUKUR IBRAHIM vs. ALHAJI YAHAYA ISHAQ UMAR & ANOR (2013) LPELR- 22805, per BDLIYA, JCA this Court had the following to say on the subject:
“In the Electoral process parlance, what is meant by ‘pre-election matter(s)? In the case of ADEOGUN vs. FASHOGBON (2008) 17 NWLR (PT. 1115) 149 AT 181, the dictionary meaning of the word: ‘pre’ is ‘before’ and when used as a prefix to the noun ‘election’, it therefore means before the election. In other words, pre-election matter means actions, conducts or any event taking place or occurring before the election.”
In other words, “Pre-Election Matters”, simply refers to matters, events or occurrences, which take place before the conduct of Elections. PER OZIAKPONO OHO, J.C.A.

COURT: CONCEPT OF ABUSE OF PROCESS OF COURT

Generally, the term; “abuse of process of Court”, is one that is applied to a proceeding which is wanting in bona-fides and frivolous, vexatious, or oppressive. Abuse of process can also mean abuse of legal procedure or improper use of the legal process. An abuse of process always involves some bias, malice, some deliberateness or misplaced bravado and some desire to misuse or pervert the course of justice. See AFRICAN REINSURANCE CORPORATION vs. JDP CONSTRUCTION NIG. LTD (2003) 13 NWLR (PT. 838) at page 609 at 635 paragraphs F-G; USMAN vs. BABA (2005) 5 NWLR (PT. 917) 113 at 131 paragraphs E-G. Usually, the category of what amounts to an abuse of process is not closed. An abuse can manifest in a variety of ways, one of which is the multiplicity of actions between the same parties on same issues, seeking the same reliefs. A Court of law will always frown at such multiplicity of actions for the following reasons;
a. This may result in the ridicule of the judicial system.
b. This issue of ridicule may stem from the fact that there may be the possibility of conflicting judgments and orders emanating from the multiple actions.
c. It amounts to a waste of judicial resource.
As a matter of practice the ground of abuse of Court process, has since become an omnibus ground in the real sense of the word, usually invoked by a party to litigation to put an end to a remedy sought by an opponent. What, perhaps, should be said in addition here is that a litigant cannot invoke the ground at will or by the spontaneous exercise of his whims. He cannot even urge the Court to invoke the ground without cause. There must be a clear legal cause, the proof of which lies on the party seeking the invocation of the ground. The party seeking the invocation of the ground must put it beyond doubt on his supporting affidavit and or his exhibits, that the proceedings in question are an abuse.
Where the multiple actions constitute an abuse of process and the Court is satisfied that the proceeding before it is an abuse of process, it has the power, and indeed the duty to dismiss it. See ARUBO & ORS vs. AIYELERU & ORS (1993) 3 NWLR (PT. 280) 126, 142 A – B, per NNEMEKA – AGU, JSC. The Court, being the architect of its integrity and dignity, must be ready and willing to protect all of its processes from being abused. PER OZIAKPONO OHO, J.C.A.

COURT: ATTITUDE OF THE COURT TOWARDS ABUSE OF PROCESSES

In the case of AGWASIM & ANOR vs. OJICHIE & ANOR (2004) 10 NWLR (PT. 882) 613 AT 624, TOBI, JSC had this to say:
“A litigant has no right to pursue pari passu two processes which will have the same effect in two Courts at the same time, with a view of obtaining victory in one of the processes or in both. …The two processes D were in law not available to the appellants simultaneously. Only one was available and the choice of these two was exclusively the appellants…. one of the processes is clearly an abuse of the judicial process.”
In the case of PDP vs. SHERRIF & ORS (2017) LPELR- 42736(SC), the Supreme Court, per BODE RHODES-VIVOUR, JSC at Pp. 58-59, para. A, while condemning an instance of crass abuse of Court process by Politicians, had this to say on the subject:
“The stakes are very high in Political matters. So, if allowed, political office seekers would not hesitate to file multiplicity of suits on the same subject matter, hoping to get a favourable judgment from one Court or the other. Their quest for this includes forum shopping. Heads of Court must by now be aware of this trend and stop this annoying practice of assigning cases on the same subject matter to different JUDGES, who very likely would render conflicting decisions, ending up making the judiciary a laughing stock. Trial judges must also be on the lookout, and refrain from proceeding with any case when aware that his brother judge is handling a similar matter.” PER OZIAKPONO OHO, J.C.A.
ELECTION MATTERS: WHO CAN CONTEST THE CONGRESS ELECTIONS OR PRIMARIES OF A POLITICAL PARTY

In cutting it to the chase, here rather than wasting valuable time on unnecessary issues, the settled position of the law under our electoral jurisprudence and as handed down in several judgments of the apex Court and as well as this Court, it is only when a person has contested in the congress elections or primaries of a political party that will enable him to approach the Court to complain that any of the provisions of the Electoral Act and the Guidelines of a political party have not been followed in the conduct of the congresses/primaries of the party. In other words, a person cannot approach the Court to complain that the political party prevented him from participating in the congresses/primaries since the issue of selection of candidates either for purposes of election or for party offices, is the prerogative of the political party concerned and the Court lacked the jurisdiction to interfere in such a matter, which is the internal affair of the political party. See LADO vs. CPC (2011) 18 NWLR (PT. 1279) 689; ALHAJI MUSTAPHA A. WUSHISHI vs. ENGR. MOHAMMED J. IMAM (2017) 18 NWLR (PT. 1597) 175 AT 211; PDP vs. SYLVA (2012) 13 NWLR (PT. 1316) 85. PER OZIAKPONO OHO, J.C.A.

Before Our Lordships:

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

ALL PROGRESSIVES CONGRESS (APC) & 6 OTHERS APPELANT(S)

And

ALH. SIRAJO GARBA & 140 OTHERS RESPONDENT(S)

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This Appeal is against the judgment of the Zamfara State High Court (hereinafter referred to as: “the Court below”) in Suit No. ZMS/GS/11/2020 delivered on 7th day of August, 2020 Coram: BELLO MUHAMMED TUKUR, J. The Appellants herein were the Respondents to an originating summons proceedings instituted by the 1st – 140th Respondents in this appeal and in which they challenged the elections into Wards, Local Governments and State Executive Committees constituted for the Zamfara State Chapter of the 1st Appellant on the 5th, 12th and 19th of June, 2018 respectively.

In the said judgment, the Court below dismissed the preliminary objections brought against the claim of the 1st – 140th Respondents by the Appellants and held that the 1st – 140th Respondents had established their case against the Appellants and consequently declared the Wards, Local Governments, State Executive Committees constituted by the 1st Appellant on 5th, 12th and 19th of June, 2018 as: unconstitutional, unlawful or illegal, null and void having been constituted in breach or violation of the 1999

Constitution (as amended), the Electoral Act and guidelines of the 1st Appellant.

Aggrieved by this judgment, the Appellants have appealed to this Court wherein they filed two (2) Notices of Appeal dated/filed on 10th and 19th of August, 2020. The notices appear at pages 1082 – 1117 in Volume 1 of the records of appeal and the Appellants have also stated their resolve to rely on the Notice filed on the 19th day of August, 2020 in arguing this appeal. The fact of this case in a nut-shell is that the 1st – 140th Respondents, at all times to this action are members of the 1st Appellant at the various Wards and Local Government Areas of Zamfara State. Sometime in June, 2018 precisely on 5th, 12th and 19th the 1st Appellant was said to have conducted its Congress elections for purposes of constituting the Zamfara State Chapter of the Executive Committees of the Party for all the 147 Wards, 14 Local Government Areas and positions at the State level and to have them run/or manage the affairs of the 1st Appellant in Zamfara State as enjoined by the 1st Appellant’s Constitution revised to 2014.

At the end of the exercise, and after a number of

persons had emerged as winners at the Ward, Local Government Areas and State levels of the Party, the 1st – 140th Respondents felt aggrieved/dissatisfied with the conduct and outcome of the said congresses and proceeded to the Federal High Court, Gusau Division where they instituted an action commenced by way of an originating summons proceedings. This suit was heard as Suit No: FHC/CV/GS/27/2018 on the 29th of June, 2018 for themselves as the Plaintiffs and several other members who were aggrieved by the outcome of the said congress elections. Their grouse was that they were not allowed to vote and be voted for on the dates of the congresses. A copy of the 1st – 140th Respondents Originating Summons and supporting affidavit/written Address are contained at pages 221- 462 of Volume 1 of the Record of Appeal. On the 6th of February, 2019 when the matter came up for hearing, before the Federal High Court, Gusau the 1st – 140th Respondents and their Counsel were absent in Court, hence the Court at the instance of the Appellants as Defendants, got the originating summons proceedings struck out for want of diligent prosecution. In reaction to the

order striking out their action, the 1st – 140th Respondents brought an application before the Federal High Court, Gusau to have the matter relisted.

The application was heard by that Court and on 15th of March, 2019 the Court in a considered ruling refused/dismissed the application on the ground, inter alia, that no useful purpose would be served by the suit as in the view of the Court the action was a pre-election matter the prosecution of which had already exceeded the 180 days stipulated by the provision of Section 285 (14) of the 1999 Constitution, as amended by the Fourth Alteration Amendment Act. A certified true copy of the Ruling of the FHC delivered on the 15-3-2019 is contained at pages 448-463 of Volume 1 of the Record of Appeal.

However, while the Ruling of the FHC delivered on the 15-3-2019 refusing the 1st – 140th Respondents’ application to have the suit struck out relisted based on the FHC’s decision that the suit was a pre-election matter within the contemplation of Section 285(14) of the 1999 Constitution (Fourth Alteration No. 21 of 2017 as Amended) was still pending, subsisting and yet to be appealed

against or set aside, on the 7th day of February, 2020, the 1st – 140th Respondents took out yet another originating summons. This time, however, it was taken out at the Zamfara State High Court against the Appellants, challenging the conduct and outcome of the congress elections conducted by the 1st Appellant for its Zamfara State Chapter on 5th, 12th and 19th June, 2018 in Suit No: ZMS/S/11/2020 between the same parties and in respect of the same subject matter and seeking similar Reliefs as in as in Suit No: FHC/GS/CS/27/2018.

In their reaction to the said summons upon being served, the Appellants promptly entered a notice of preliminary objection to the originating summons brought by the 1st – 140th Respondents and filed their counter affidavits and written addresses in which they joined issues with the 1st – 140th Respondents on the merit of their claim. The objections taken to the action by the Appellants were on grounds that the issues/grounds/reliefs, et cetera sought in the fresh action had previously been determined/resolved with finality by the Federal High Court in Suit No: FHC/CV/GS/27/2018, and that the subsequent

proceedings constituted an abuse of process; that the originating summons procedure under which the said action was commenced was inappropriate, et cetera.

The preliminary objection of the Appellants and the originating summons proceedings were heard together and a considered ruling/judgment was delivered by the Court below on 7th day of August, 2020. In its judgment, the Court below dismissed the preliminary objection brought by the Appellants and after holding that the Respondents had made out a satisfactory case against the Appellants, the Court below declared the Executive Committees constituted for the State, Wards and Local Government areas of Zamfara State on 5th, 12th and 19th June, 2018 as unconstitutional, unlawful, null, void and placed a restraining order on all persons elected as members of those committees. It is against the judgment/Ruling of the Zamfara State High Court in Suit No: ZMS/GS/11/2020 of the 7th of August, 2020 that the Appellants filed two Notices of Appeal on 10th and 19th August, 2020.

In respect of the Notice of Appeal filed on the 19th of August, 2020 and upon which the Appellants have anchored the hearing of this

Appeal, a total of ten (10) grounds of appeal were filed and out of which the Appellants nominated a total of four (4) issues for the determination of this Appeal as follows;
1. In view of the pending and subsisting ruling of the Federal High Court on the 15th of March, 2020 in suit No: FHC/GS/CS/27/2018 between ALHAJI SIRAJO GARBA & 138 ORS vs. ALL PROGRESSIVE CONGRESS (APC) & 7 ORS dismissing the suit for being statute barred and constituting an abuse of Court process, whether the lower Court was not wrong in holding that the subsequent filing of suit No: ZMS/GS/11/2020, between: ALHAJI SIRAJO GARBA & 138 ORS vs. ALL PROGRESSIVE CONGRESS (APC) & 7 ORS on the same subject and between the same parties before the Zamfara State High Court does not constitute abuse of Court process and res judicata? (Grounds 2, 3 and 6).
2. In view of the provision of Section 285(9), (10), (14) of the 1999 Constitution of the Federal Republic of Nigeria as amended, Fourth Alteration, No. 21 Act 2017, whether Suit No: ZMS/GS/11/2020 as constituted at the trial Court was not statute barred? (Grounds 1, 4 and 8).
3. Given the contentious facts evinced in

the Affidavits of parties, whether the suit was properly commenced by way of Originating Summons? (Ground 9).
4. Considering the documentary evidence in the Appellants’ Counter Affidavit to the Originating Summons and Further Affidavit before the lower Court filed on the 10th March, 2020 and 8th July, 2020 respectively, whether the trial Court was right in holding that the congress conducted by the 1st Appellant on the 5th, 12th and 19th of May, 2018 for the election of executives members of the party at the State, Local Government and Wards levels were not conducted in accordance with the provisions of the 1999 Constitution, the Electoral Act, 2010 and the Constitution of All Progressive Congress? (Grounds 5, 7 and 10).

On the part of the 1st – 140th Respondents, in opposition of the grant of this Appeal, a Notice of Preliminary Objection was dated/filed on 5-10-2020. The grounds for bringing the objection are that the appeal before this Court is incompetent by reason of failure by the Appellants to comply with the mandatory conditions precedent stipulated by Paragraphs 9 and 10 of the Court of Appeal Election Tribunal and Court Practice

Directions, 2011, which requires the Appellants to transmit the records of appeal within a period of 10 days from the date of filing of the Notice of Appeal and file their brief of argument within ten (10) days from the service upon them of the records of appeal.

Apart from the Notice of Preliminary Objection, the 1st-140th Respondents adopted the four (4) issues nominated for the determination of this Appeal by the Appellants in their brief of argument and upon which they responded to the Appeal in seriatim.

Before dealing with the Notice of Preliminary Objection raised by the 1st -140th Respondents herein, there may be the overriding need to first decide as a preliminary point, the question of whether the subject matter of this Appeal and by necessary implication, the suits filed and determined at the Court below and which have given rise to this Appeal, can in any way and probably in its nature, be said to be “Pre-Election Matter”? It would be recalled that at the Court below precisely in the suit which came up before the Federal High Court in suit No: FHC/GS/CS/27/2018, the basis upon which the FHC decided that suit against the 1st

– 140th Respondents was that the matter was a “Pre-Election Matter” within the contemplation of Section 285 (14) of the 1999 Constitution, (Fourth Alteration No: 21 of 2017 as amended) and that the said suit ought to be concluded and determined within 180 days from the date of filing as required by Section 285(10) of the 1999 Constitution, (Fourth Alteration No: 21 of 2017 as amended).
It would equally be recalled that in a subsequent suit filed by the 1st – 140th Respondents at the Zamfara State High Court in suit No: ZMS/GS/11/2020 between: ALHAJI SIRAJO GARBA & 138 ORS vs. ALL PROGRESSIVE CONGRESS (APC) & 7 ORS, where the 1st – 140th Respondents had thought fit to seek a redress on the same subject matter and between the same parties, the basis upon which the Zamfara State High Court had given its Ruling against the Appellants on the 7th of August, 2020 whilst dismissing the Notice of Preliminary objection of the Appellants, was that Section 285(9) and (14) of the Constitution of Nigeria, 1999 as amended (Fourth Alteration No: 21 of 2017 as amended) does not have a universal application and therefore does not apply

in matters involving party congresses.
Apart from the fact that the Appellants herein, on the one hand and the 1st – 140th Respondents, on the other hand, appear to have joined issues on the subject matter of whether this Appeal is the result of a fall-out of a “Pre-Election matter” or not, the issue once again reared its (ugly?) head literally so to speak in the 1st – 140th Respondents’ Notice of preliminary Objection to the hearing of this Appeal when they argued that the appeal before this Court is incompetent by reason of failure by the Appellants to comply with the mandatory conditions precedent stipulated by Paragraphs 9 and 10 of the Court of Appeal Election Tribunal and Court Practice Directions, 2011 which requires that the Appellants should transmit their records of appeal within a period of 10 days from date of filing of the Notice of Appeal and also file their brief of argument within ten (10) days from the service upon them of the records of appeal.
It is instructive to note that the dominant argument of the 1st – 140th Respondents made in support of their Notice of Preliminary Objection is that the

Appellants, having contended all along that this appeal have arisen from a pre-election matter within the contemplation of Section 285(9), (10) and (14) of the Constitution of the Federal Republic of Nigeria, as amended by the Fourth Amendment Act, No. 21 this Court can only assume jurisdiction to hear/determine this appeal only after the Appellants must have placed before this Court records of Appeal and their brief of argument within the period prescribed by Paragraphs 9 and 10 of the Court of Appeal Election Tribunal and Court Practice Directions, 2011.
Arising from the foregoing therefore, the question that begs to be answered at this stage is: whether this appeal as presently constituted and by its nature can be said to be a “Pre-Election Matter” as contemplated under Section 285(14) of the 1999 Constitution of the Federal Republic of Nigeria (Fourth Alteration, No: 21 Act, 2017 as amended)? It should be stated here that the answer to this question shall not only effectively settle the issue raised in the Notice of Preliminary objection, but also the question raised in the Appellants’ issue two (2), which the 1st – 140th

Respondents have adopted and upon which both sides have addressed this Court extensively, citing a plethora of cases in support of their arguments.
It is important to state at this stage, that despite the service of processes on the 141st Respondent, that is the Independent National Electoral Commission, (INEC), the said 141st Respondent was absent throughout the hearing of this appeal and was neither represented by Counsel nor did the 141st Respondent deem it fit to file processes.
That having been settled, a convenient point, perhaps, to begin at this stage is to first give a definition of what a “Pre-Election Matter’’ is all about. Section 285(14)(a) of the Constitution of Nigeria, 1999 as amended by the Fourth Alteration Act, No: 21 of 2017, clearly defines a “Pre-Election Matter” thus:
“For the purpose of this section, ‘Pre-Election Matter’ means any suit by;
(a) An aspirant who complains that any of the provisions of the Electoral Act or any of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for

the conduct of party in respect of the selection or nomination of candidates for an election.”
It is important to note that the decisions of this Court in several matters are replete with definitions of the expression: “Pre-Election Matters.” In the case ofINEC & ANOR vs. ETENE (2013) LPELR-22108 this Court per GARBA, JCA had this to say on the subject:
“In everyday terms, pre-election matters are complaints in respect of issues which arise before and therefore precede the holding or conduct of an election. Post election matters on their part are matters which arise from or relate directly to the actual conduct of an election about which candidates and political parties who contested the election are dissatisfied with on any of the cognizable grounds stipulated in the Electoral Act.”
In yet another decision of this Court in the case of TUKUR IBRAHIM vs. ALHAJI YAHAYA ISHAQ UMAR & ANOR (2013) LPELR- 22805, per BDLIYA, JCA this Court had the following to say on the subject:
“In the Electoral process parlance, what is meant by ‘pre-election matter(s)? In the case of ADEOGUN vs. FASHOGBON

(2008) 17 NWLR (PT. 1115) 149 AT 181, the dictionary meaning of the word: ‘pre’ is ‘before’ and when used as a prefix to the noun ‘election’, it therefore means before the election. In other words, pre-election matter means actions, conducts or any event taking place or occurring before the election.”
In other words, “Pre-Election Matters”, simply refers to matters, events or occurrences, which take place before the conduct of Elections. In the Appellants’ issue number two (2) herein, the Appellants made a heavy weather in contending that the suit as constituted in the Court below was statute barred in view of the provision of Section 285(9), (10), (14) of the 1999 Constitution of the Federal Republic of Nigeria as amended, Fourth Alteration, No: 21 Act 2017, when same, being a pre-election matter was not filed unto Court within fourteen (14) days from the date of 19th May, 2019 when the congresses were concluded. In addition, that the matter was also statute barred on or about the 6th of July, 2020 when the suit leading to this Appeal by virtue of Section 285 (10) of the Constitution of Nigeria,1999

the Court below did not deliver its judgment/Ruling in writing within 180 days from the date the suit was filed.
In arguing the issue number two (2), learned Appellants’ Counsel cited and relied heavily on the case of ALL PROGRESSIVES CONGRESS vs. UMAR & ORS (2019) LPELR- 47296, where the apex Court per AMIRU SANUSI, JSC held that party congresses for the election of political party officials are pre-election matters, when the noble Lord held thus:
“The next ground of objection is whether the appeal before the Court below i.e. CA/PH/461/2018 is a pre-election matter as would come under the provisions of Section 285 of the 1999 Constitution as amended. The learned Senior Counsel for the Appellant submits that the reliefs sought in the suit he filed before the trial Court vide the originating summons pertained to holding of congresses to elect leaders of political parties and therefore the reliefs sought in that suit could not be regarded as pre-election matter because the reliefs sought in the suit relates only to election of the Executive members of party and that it is intra-party activities. With due deference to the learned

senior advocate, I think it would be apt to say that the word: ‘election’ means the process of choosing by popular votes the, a candidate for political office in a democratic government. See …. it goes without saying that therefore that any preparation or process embarked upon by a political party in preparation for an election can as well be regarded as: ‘Pre-Election’ or prior to the election or before the election as opposed to post-election, which would obviously relate to any exercise or process done after the election. To my mind therefore, the process or exercise embarked upon by a political party such as congress, nomination exercise, et cetera are all pre-election matters or exercise. The instant suit being an exercise before or prior to election is therefore caught up by or is within the purview of Section 285(14) of the Constitution 4th Alteration Act, 2017.”
(Under lined, mine for emphasis).
Against the backdrop of the foregoing, what seem to be consistent and stands out in all the definitions of the expression: “Pre-Election Matter” both from the stand point of

Section 285(14)(1) of the Constitution of Nigeria, 1999 as amended by the Fourth Alteration Act, No: 21 of 2017 and the numerous pronouncements made on the subject by this Court and the apex Court, and as exemplified by the observations of SANUSI, JSC in ALL PROGRESSIVES CONGRESS vs. UMAR & ORS (Supra) is that the given primary or congress, which must be complained against, to qualify to be christened a pre-election matter must have been embarked upon by the given political party in preparation for an election and in such a manner that the said congress or primary must have led to the nomination of candidates for an election that is yet to hold.
It is instructive to note that in the instant Appeal, there is no record of the 1st-140th Respondents at the Court below, having laid any claims to being aspirants at the primaries or congresses of the 1st Appellant and in which they sought to be nominated or selected as candidates to contest elections in order to occupy any of the offices of President, Governor, Senate, House of Representatives and State House of Assembly as prescribed under Section 87(9) of the Electoral Act, 2010 as amended. Rather the said 1st – 140th Respondents

had accepted to take the gauntlet of challenging the 1st Appellant’s congresses or primaries conducted, not in preparation or in contemplation having them selected as candidates for any forthcoming elections, but purely to determine the issue of selecting Executive Officers who would occupy administrative/managerial positions in the affairs of the Wards, Local Governments and State Executive Committees/Organs of the 1st Appellant. No more, no less.
This being the position, this Court is of the clear view that the decision of the apex Court in the case of ALL PROGRESSIVES CONGRESS vs. UMAR & ORS (Supra) is clearly distinguishable from the facts of the instant appeal. Here is an Appeal in which the main distinguishing feature is that whereas in the situation of the case of the ALL PROGRESSIVES CONGRESS vs. UMAR & ORS (Supra) the primaries/congresses conducted were predicated on an exercise embarked upon by the party for the nomination or selection of candidates in preparation for an election as opposed to the facts of the instant case, where the congresses/primaries had nothing to do with any preparation towards any elections, but merely to

select officers to run or manage the affairs of the parties in various administrative/managerial levels. How this necessarily translates into becoming a “Pre-Election Matter” naturally beats the imagination of this Court.
Learned Counsel for the 1st – 140th Respondents urged upon this Court to hold that actions relating to congresses of political parties not intended to select or nominate candidates in preparation for any forthcoming elections, but merely intended to select officers to run the affairs of the parties do not fall within the definitions of pre-election matters required to be commenced within fourteen (14) days of the action, decision or event complained of and concluded within 180 days from the date of its commencement. This Court finds it difficult not to agree with learned 1st – 140th Respondents’ Counsel on this point and therefore finds and do hold that the case as constituted at the Court below was not a pre-election matter within the contemplation of the provision of Section 285(9), (10), (14) of the 1999 Constitution of the Federal Republic of Nigeria as amended, Fourth Alteration, No. 21 Act 2017.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Consequently, what this situation therefore portend, is that having adjudged the matter not to be a pre-election matter, the position clearly obviates the need on the part of the 1st – 140th Respondents to file their suit within 14 days from the 20th May, 2019 and in the same vein, not required mandatorily to have their matter heard and determined within 180 days from the date of 7th of February, 2020 when the matter was filed.
This decision on the part of this Court therefore, to the effect that this appeal did not relate to and/or arise from a pre-election matter, effectively and automatically puts paid to the contention and arguments of the 1st – 140th Respondents in support of their Notice of Preliminary Objection and renders same otiose, in so far as their notice of objection was predicated on the contention of the Appellants who had insisted that the matter at the Court below was a pre-election matter.

The foregoing, notwithstanding, another reason, which effectively renders the Notice of Preliminary objection clearly of no moment, is the issue of the non-applicability of the Court of Appeal Election Tribunal and Court Practice

Directions, 2011 to matters of this nature. Upon a careful and calm perusal of the said Practice Direction, immediately after its preamble and commencement sections, it is the place of its application, shortly before its interpretation section, where it is stated thus:
“This Practice direction shall apply and be observed in the Election Tribunals and in the Court of Appeal when sitting as a Tribunal or when hearing an Appeal from a Tribunal.”

In the instant Appeal, it is observed that in this case, this Court has neither sat as a Tribunal nor has it taken on an appeal from the Court below sitting as a Tribunal. Consequently, the Notice of Preliminary Objection is devoid of merit and it is accordingly dismissed.

DETERMINATION OF THE SUBSTANTIVE APPEAL
ISSUE ONE:
In view of the pending and subsisting ruling of the Federal High Court on the 15th of March, 2020 in suit No: FHC/GS/CS/27/2018 between ALHAJI SIRAJO GARBA & 138 ORS vs. ALL PROGRESSIVE CONGRESS (APC) & 7 ORS dismissing the suit for being statute barred and constituting an abuse of Court process, whether the lower Court was not wrong in holding that the

subsequent filing of suit No: ZMS/GS/11/2020, between: ALHAJI SIRAJO GARBA & 138 ORS vs. ALL PROGRESSIVE CONGRESS (APC) & 7 ORS on the same subject and between the same parties before the Zamfara State High Court does not constitute abuse of Court process and res judicata? (Grounds 2, 3 and 6).

This issue was argued in two parts by learned Appellants’ Counsel at pages 4 to 16 of the Appellants’ brief of argument filed on the 23-09-2020. The gravamen of the case of the Appellants under this issue is that the claim before the Court below in suit No. ZMS/GS/11/2020 is the same as the claim brought by the 1st – 140th Respondents in Suit No: FHC/GS/CS/27/2018 at the Federal High Court, Gusau Zamfara State of Nigeria and which the Court struck out on the 6th February, 2019 for want of diligent prosecution and subsequently got dismissed on 15th March, 2019 in a ruling refusing an application brought by the 1st – 140th Respondents to have the suit relisted.

Based on the foregoing, the contention of the Appellants herein, is that the decisions of the Federal High Court as contained in its double-barreled rulings, which are

still binding and subsisting constitutes a formidable plea of res judicata or a bar to the subsequent claim brought by the 1st – 140th Respondents in Suit No. ZMS/GS/11/20202 between: ALHAJI SIRAJO GARBA & 138 ORS vs. ALL PROGRESSIVE CONGRESS (APC) & 7 ORS and that this robs the Court below of the necessary vires/jurisdiction to adjudicate on the matter. It was for this reason that the Appellants had urged upon this Court to dismiss the 1st – 140th Respondents’ originating summons dated the 7-2-2020. Learned Appellants’ Counsel buttressed his arguments with several decided authorities, some of which are: OKUKUJE vs. AKWIDO (2001) LPELR-2526(SC); UBA PLC vs. BTL INDUSTRIES LTD. (2005) 10 NWLR (PT. 933) 358; SAMUEL FADIORA & ANOR vs. FESTUS GBADEBO & ANOR. (1978) 3 SC 219; ADONE vs. IKEBUDU (2001) 14 NWLR (PT. 733) 385 AT 617; COLE vs. JIBUNOH & 2 ORS. (2016) 4 NWLR (PT. 1503) 499 AT 521; NTUKS & ORS vs. NPA (2007) 13 NWLR (PT. 1051) 392 AT 412 and AJIBOYE vs. ISHOLA (2006) 13 NWLR (PT. 998) 628.

In response to the arguments canvassed by the Appellants on this issue, the 1st – 140th Respondents at pages 10 to

16 of their brief of argument filed on the 3-10-2020 submitted that the arguments canvassed by the Appellants is grossly misconceived and based on facts that were deliberately coloured to mislead this Court. Learned 1st â 140th Respondents Counsel drew attention to the Respondents’ paragraphs 8 – 14 of their Counter affidavit filed in opposition to the Defendants/Objectors supporting affidavit filed at the Court below. According to learned Counsel, the claim of the 1st-140th Respondents in Suit no. FHC/GS/CS/27/2018 then before the Federal High Court, Gusau and which has been tendered as constituting res judicata and a bar to the claim in Suit No. ZMS/GS/11/2020 was never heard on its merit, but struck out on 6th February, 2018 by that Court for want of diligent prosecution.

According to learned 1st – 140th Respondents Counsel the order of the Federal High Court striking the suit before it was made pursuant to the provisions of Order 19 Rule 3 of the Federal High Court (Civil Procedure) Rules 2013, as amended and the inherent powers of the Court; the effect of which, is that the claim of the Respondents as it were, was summarily

terminated not on its merit as same was done without a hearing and/or resolution/determination of the myriad of issues/reliefs raised in the said claim on their merit.
Now, because such an order was made and resulted in the striking out of Suit No: FHC/GS/CS/27/2018 on 6th February, 2018 was not meant to and indeed cannot resolve the issues thereat and determine the rights of the parties thereto with finality, Counsel referred to the preceding Rule 4(2) of the Federal High Court (Civil Procedure) Rules 2013, which provides thus:
“Any judgment obtained where any party does not appear at the trial may be set aside by the judge upon such terms as he may deem fit.’’
The further argument of Counsel is that the decision of the Federal High Court, Gusau striking out Suit no. FHC/GS/CS/27/2018 for want of diligent prosecution did not determine the issues and rights of the parties thereto with finality as it leaves the aggrieved party with at least the options of applying to relist or filing a fresh action to press home his claim. Counsel cited the case of TSA IND. LTD vs. F.B.N. PLC (NO. 1) (2012) 14 NWLR 326 in support of his

argument. Counsel argued in addition, that what was before the Federal High Court on 15th March, 2018 was an application to resurrect the claim of the 1st â 140th Respondents in suit No: FHC/C/GS/27/2018 which had been rendered lifeless by the order of the Court made on 6th February, 2018.
It would be recalled that at page 51 of Exhibit MAM 2, while striking out the 1st – 140th Respondents in suit No: FHC/C/GS/27/2018 the FHC had this to say:
“I find that there is no merit in the Motion on Notice filed on 7th February, 2019 to relist Suit no. FHC/GS/CS/27/2018 struck out for want of diligent prosecution as this action is statute barred and cannot be validly relisted. I hereby dismiss this case.”
Based on the foregoing, it is this ruling that the Appellants have urged this Court to take into consideration in deciding that the said suit No: FHC/GS/CS/27/2018 indeed suffered the hammer of a dismissal and the effect of which constitutes a res judicata in the matter. However, in taking a critical look at the pronouncements of the FHC referred to here-above, it is important to note that the Court restated the fact in

one breath that the claims of the 1st – 140th Respondents in suit No: FHC/C/GS/27/2018 had been struck out and therefore, cannot be relisted for the reason that the claim had become statute barred and in another breath, proceeded to have the claim in the substantive suit dismissed. The question to perhaps, address at this point is whether a Court can validly have a matter dismissed, which was not heard and determined on its merit? See the cases of ADEBAYO vs. T.S.G. (NIG.) LTD. (2011) 4 NWLR (PT. 1238) 493; AFOSI vs. STATE (2008) 33 NSCQR 1445 and C.B.N vs. ADEDEJI (2014) 13 NWLR (PT. 890) 226 all on this issue.
In anyways, the attitude of this Court clearly in agreement with the Counsel to the 1st – 140th Respondents in suit No: FHC/C/GS/27/2018 is that the FHC was clearly out of order when it suo motu took it upon itself to re-visit an earlier order made, re-heard same in the same cause of action/proceedings where it had earlier made an order striking out the suit only to convert same into an order of dismissal. For the simple reason that the Court had at that stage acted without the necessary jurisdiction to so do, this Court cannot

clearly see its way in agreeing with the Appellants that this is an appropriate case for which the plea of res judicata can properly be invoked. Another reason is that for the plea to be successfully invoked, it must be related to a decision which was determined on its merit and to its finality, which was not the case in the suit determined by the FHC in Suit No: FHC/C/GS/27/2018. See the case of NWOPARA OGBOGU & ORS vs. NWONUMA NDIRIBE & ORS (1992) 6 NWLR (PT. 245) 40; COLE vs. JIBUNOH & 2 ORS (2016) 4 NWLR (PT. 1503) 499 at 521 paras A-B on the subject.

On the second limb of the Appellants’ issue number one, dealing with the question of abuse of Court process, learned Counsel for the Appellants submitted that the central issues and ultimate reliefs in Suit No: FHC/GS/CS/27/2018 are the same as the Suit No. ZMS/GS/11/2020, which the 1st – 140th Respondents subsequently filed at the High Court of Zamfara State. The argument of Counsel in furtherance of his contention is that the subsequent suit was an abuse of process and that the Court below erred in law by holding otherwise, despite being furnished with uncontroverted

documentary and affidavit evidence in the affidavit in support of their Notice of Preliminary Objection on the issue to show that a similar suit between the same parties in respect of the same relief, subject matter and reliefs had earlier been filed and dismissed, by the Federal High Court sitting in Gusau.

The contention also of learned Appellants’ Counsel is that based on the totality of the material facts in the affidavit in support of the Preliminary Objection, particularly the fact that the Federal High Court, sitting in Zamfara State had earlier decided the same/similar questions and subject matter between the same parties in Suit No: FHC/GS/CS/27/2018 between ALHAJI SIRAJO GARBA & 138 ORS vs. ALL PROGRESSIVE CONGRESS (APC) & 7 ORS on the 15th of March, 2019, that the subsequent filing of Suit No. ZMS/GS/11/2020 was intended to irritate, intimidate and annoy, intimidate the Court and the Appellants and that the subsequent suit constitutes an abuse of Court process.

According to learned Appellants’ Counsel the implication of the ruling of the Federal High Court, Gusau on 15th March, 2020 refusing to relist suit No:

FHC/GS/CS/27/2018 between ALHAJI SIRAJO GARBA & 138 ORS vs. ALL PROGRESSIVES CONGRESS (APC) & 7 ORS and dismissing the matter for being statute barred, is that the 1st – 140th Respondents’ rights to ventilate their grievances on the same subject matter/issues and claims before any Court of co-ordinate jurisdiction such as the trial High Court of Zamfara State became extinguished. And that in addition and as a matter of law for that matter, the only option open to the 1st – 140th Respondents was to challenge same on appeal as the decision constitutes a bar to presenting the same subject matter/reliefs before any other Court of co-ordinate jurisdiction with the Federal High Court. Counsel further said that rather than challenge the ruling of the Federal High Court on appeal, the 1st – 140th Respondents chose instead, to re-litigate the same issues/reliefs and engaged in forum shopping by filing another suit between the same parties in respect of the same subject matter and reliefs at the High Court of Zamfara State.

In reacting to the submissions of learned Appellants’ Counsel on the issue of abuse of process, learned 1st –

140th Respondents’ Counsel rather held the view that the argument that the claim in suit No. ZMS/GS/11/2020 before the Court below constituted an abuse of process is premised on the supposition by the Appellants that the Federal High Court had jurisdiction to review its previous ruling striking out the 1st – 140th Respondents’ claim and proceed instead to dismiss same under the guise of determining an application to relist, which the FHC had no jurisdiction to do. For this reason, learned 1st – 140th Respondents’ Counsel submitted that the action of the Respondents in commencing a fresh suit before the Zamfara State High Court the way they did in the circumstances such as exist in this case cannot be construed as being unusual or irregular or precipitate or malafide or attempting to frustrate or harass or annoy or irritate or interfere or impede the due administration of justice within the contemplation of the decisions of the apex Court and Court of Appeal in the cases of MESSRS N. V. SCHEEP & ANOR vs. THE MV.“S. ARAZ & ANOR (2000) 15 NWLR (PT. 691) 622 AT 664 PARAS A-D; NTUKS & ORS vs. NIGERIA PORTS AUTHORITY (2007)

13 NWLR (PT. 1061) 392, 419 – 420 PARAS H – C; SARAKI vs. KOTOYE & ORS. (1992) 9 NWLR (PT. 1144) 601 AT 610 PARA D; ARUBO & ORS vs. AIYELERU & ORS. (1993) 3 NWLR (PT. 280) 126, AT 142.

ridicule of the judicial system.
b. This issue of ridicule may stem from the fact that there may be the possibility of conflicting judgments and orders emanating from the multiple actions.
c. It amounts to a waste of judicial resource.
As a matter of practice the ground of abuse of Court process, has since become an omnibus ground in the real sense of the word, usually invoked by a party to litigation to put an end to a remedy sought by an opponent. What, perhaps, should be said in addition here is that a litigant cannot invoke the ground at will or by the spontaneous exercise of his whims. He cannot even urge the Court to invoke the ground without cause. There must be a clear legal cause, the proof of which lies on the party seeking the invocation of the ground. The party seeking the invocation of the ground must put it beyond doubt on his supporting affidavit and or his exhibits, that the proceedings in question are an abuse.
Where the multiple actions constitute an abuse of process and the Court is satisfied that the proceeding before it is an abuse of process, it has the power, and indeed the duty to dismiss it. See ARUBO & ORS vs. AIYELERU & ORS

(1993) 3 NWLR (PT. 280) 126, 142 A – B, per NNEMEKA – AGU, JSC. The Court, being the architect of its integrity and dignity, must be ready and willing to protect all of its processes from being abused. The question that therefore begs to be answered here is whether the Appellants, have by their supporting affidavit and exhibits at the Court below put it beyond a doubt that the subsequent proceedings commenced at the Zamfara State High Court constituted an abuse of process? For the answer to this teaser, see paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 of the supporting affidavit to the preliminary objection on pages 219 – 220 of Volume 1 of the record of appeal.
The proper position remains that even if it may be somehow conceded that Respondents’ Counsel may be right in his submission that learned Appellants’ Counsels contention that the subsequent suit No: ZMS/GS/11/2020 amounted to an abuse of process is premised erroneously on the supposition by the Appellants that the Federal High Court had jurisdiction to review its previous ruling where it struck out the 1st – 140th Respondents’ claim

and substituted that with an order of dismissal, it does not lie in the mouth of the Respondents to make a pronouncement of their own on the issue and proceed thereafter to a Court of co-ordinate jurisdiction, rather than proceeding to the Court of Appeal. In the case of AGWASIM & ANOR vs. OJICHIE & ANOR (2004) 10 NWLR (PT. 882) 613 AT 624, TOBI, JSC had this to say:
“A litigant has no right to pursue pari passu two processes which will have the same effect in two Courts at the same time, with a view of obtaining victory in one of the processes or in both. …The two processes D were in law not available to the appellants simultaneously. Only one was available and the choice of these two was exclusively the appellants…. one of the processes is clearly an abuse of the judicial process.”
In the case of PDP vs. SHERRIF & ORS (2017) LPELR- 42736(SC), the Supreme Court, per BODE RHODES-VIVOUR, JSC at Pp. 58-59, para. A, while condemning an instance of crass abuse of Court process by Politicians, had this to say on the subject:
“The stakes are very high in Political matters. So, if allowed, political office seekers would not

hesitate to file multiplicity of suits on the same subject matter, hoping to get a favourable judgment from one Court or the other. Their quest for this includes forum shopping. Heads of Court must by now be aware of this trend and stop this annoying practice of assigning cases on the same subject matter to different JUDGES, who very likely would render conflicting decisions, ending up making the judiciary a laughing stock. Trial judges must also be on the lookout, and refrain from proceeding with any case when aware that his brother judge is handling a similar matter.”
By seeking its redress before a Court of equal or coordinate jurisdiction, the implication of the 1st – 140th Respondents’ judicial indiscretion to say the least, resulted in the sacrilegium of allowing a Court of coordinate jurisdiction sit on appeal over the decision of another Court of coordinate jurisdiction. No matter how germane or plausible the reasoning of the Respondents in approaching the Zamfara State High Court after their recorded misfortune in the hallowed chambers of the Federal High Court, Gusau the ridicule and opprobrium, which their decision may attract to

the Judiciary in the long run may never be equated with whatever short term gains it may have attracted to the Respondents. No Court worth its judicial salt would allow the product of such a decision to stand, without having to strike it down. The impression must not be created in the minds of the parties and the watchful eyes of the Nigerian public that it is as easy as walking across the road to the Zamfara State High Court to procure the orders, which they could not get at the Federal High Court, Gusau. For there is no better way to destroy the last vestiges of integrity and respects, which the Nigerian judiciary presently stands badly in need of. See the observations of ONNOGHEN, JSC in the case of CHIEF AMEKE C. IKECHUKWU vs. HON. TONY NWOYE & ORS.(2014) 60 NSCQR 533 AT pp. 593-594. The act of getting two parallel Courts deliver two conflicting judgments between the same parties in respect of the same subject matter cannot in anyway be condoned by this Court. Against the backdrop of the foregoing, the second limb of issue number one is resolved against the 1st – 140th Respondents.

ISSUE TWO:
In view of the provision of Section 285(9),

(10), (14) of the 1999 Constitution of the Federal Republic of Nigeria as amended, Fourth Alteration, No. 21 Act 2017, whether Suit No: ZMS/GS/11/2020 as constituted at the trial Court was not statute barred? (Grounds 1, 4 and 8).

The issue number two (2) had already been dealt with along with the Notice of Preliminary Objection raised by the 1st – 140th Respondents. It would be recalled that while this Court found and held that the 1st – 140th Respondents’ suit as constituted in the Federal High Court in Suit No: FHC/GS/CS/27/2018 between ALHAJI SIRAJO GARBA & 138 ORS vs. ALL PROGRESSIVES CONGRESS (APC) & 7 ORS, was not a pre-election matter on the one hand, the Court on the other hand also found that the Notice of Preliminary Objection was of no moment due largely to the fact that the matter not being a pre-election matter, the Court of Appeal Election Tribunal and Court practice directions, 2011 did not apply to the appeal.

ISSUE THREE:
Given the contentious facts evinced in the Affidavits of parties, whether the suit was properly commenced by way of Originating Summons? (Ground 9).

The main thrust of the

arguments of the Appellants in respect of the originating summons procedure in this Appeal is that the facts upon which the main issues for determination were predicated are disputed and highly contested; that the matter would have been better resolved not by the originating summons procedure but by the filing of pleadings and the taking of oral evidence from the witnesses. On the part of the 1st – 140th Respondents, it was conceded by learned Counsel on their behalf, that the supporting affidavit, counter affidavits, et cetera before the Court below, were irreconcilably in conflict such as made it necessary for the Court below to direct that the claim be transferred to the general cause list and for parties to file their respective pleadings to enable all the facts and issues in controversy between the parties be tested in open Court and resolved. It was further conceded on behalf of the 1st – 140th Respondents that the Court below erred in proceeding to determine the claim on the basis of affidavit evidence and documentary exhibits not subjected to the scrutiny of cross examination. Against the backdrop of the foregoing, this issue is resolved in favour of the Appellants.

ISSUE FOUR:
Considering the documentary evidence in the Appellants’ Counter Affidavit to the Originating Summons and Further Affidavit before the lower Court filed on the 10th March, 2020 and 8th July, 2020 respectively, whether the trial Court was right in holding that the congress conducted by the 1st Appellant on the 5th, 12th and 19th of May, 2018 for the election of executives members of the party at the State, Local Government and Wards levels were not conducted in accordance with the provisions of the 1999 Constitution, the Electoral Act, 2010 and the Constitution of All Progressive Congress? (Grounds 5, 7 and 10).

In arguing this issue, at pages 27 to 32 of the Appellants’ brief of argument, learned Appellants’ Counsel submitted that 1st – 140th Respondents even by their own showing, failed to show that they are duly registered/card carrying members of the 1st Appellant who were either “screened” to contest for elective posts or “accredited” to vote for a candidate of their choice. According to learned Counsel, this Court cannot assume or imply these facts in the

1st – 140th Respondents’ without the Plaintiff having placed requisite particulars/materials before the Court in proof of this foundational fact.

According to learned Appellants’ Counsel, the 1st – 140th Respondents in their supporting affidavit to the Originating Summons kept referring to “3203 nos. other aspirants/candidates” who, Counsel said may well be ghosts or just some imaginary figure meant to whip up sentiments before the Court against the Defendants. It was also contended by Counsel, that even the 1st – 140th Respondents listed on the face of the Originating Summons have not shown by affidavit evidence that they are duly registered/Card Carrying Members of the 1st Appellant. Counsel argued that this fact is germane and must be settled before the 1st – 140th Respondents can move forward.

It was further contended by Learned Appellants’ Counsel that the 1st – 140th Respondents also failed to prove in their supporting affidavit that being duly registered/card carrying members of the 1st Appellant they were unduly prevented from participating in the periodic elections of the 1st Appellant in Zamfara State.

According to Counsel, by their own admission in paragraphs 19 and 20 of their supporting affidavit, the 1st – 140th Respondents disregarded the Notice issued out by the 1st Appellant for interested members to purchase, complete and return Nomination Forms for the various party positions at least before 24 hours to the conduct of the elections.

Counsel argued that the act of issuing Notices to members of the 1st Appellant as well as the general public is itself in keeping with the democratic tenets and principles guiding the conduct of the 1st Appellant. Once again, he contended that by their own admission, the 1st – 140th Respondents waited until the date of the Congresses to demand for Nomination Forms so as to contest for party posts. Against this background, he submitted that it was no more the fault of the 1st Appellant or of the 8th Defendant whose activities are guided by law and timelines. Counsel also invited the attention of this Court to the provisions of the All Progressives Congress: Guidelines for Wards, Local Government Areas and States Congresses attached to 1st – 140th Respondents’ Affidavit in Support of their Originating Summons

and marked Exhibit Congress D.

Learned Appellants’ Counsel also contended that as a matter of fact, the 1st Appellant, issued public notices for its congresses, nomination forms for various elective posts to willing members, and proceeded to organize its congress under the watchful eyes of the officials and personnel of Independent National Electoral Commission (INEC) who witnessed and observed the whole procedure and deemed it democratic and transparent enough to receive the names of the said officials.

Against this position, Counsel submitted that where a party sleeps on his right by not acting in time when he is supposed to act, equity itself cannot come to his aid for it is said that equity does not aid the indolent. Counsel submitted that the 1st – 140th Respondents slept on their rights and having realized that they lost out due to their own doing, they decided to cause trouble for the 1st Appellant and rather see that the whole endeavor comes to naught.

Similarly, learned Counsel further argued that in demonstrating the fact that the 1st – 140th Respondents have woefully failed to prove their case as against that of the

Defendants, he drew this Court’s attention to paragraphs 33, 31 and 46 of the Affidavit in Support of the Originating Summons, which reveals glaringly the that 1st -140th Respondents are only trouble mongers seeking to undermine the 1st Appellant in Zamfara State.

On the part of the 1st – 140th Respondents, rather than join issues with the Appellants as expected, had this to say at page 23 of its brief of argument at paragraphs 7.50 and 7.51:
“This issue seeks to consider the merit or correctness of the decision of the Court below that the wards, local government and State Executive committees of the 1st Appellant constituted on 5th, 12th and 19th June, 2018 was in violation of the 1999 Constitution, the Electoral Act and guidelines and the declaring same unconstitutional, illegal/unlawful, null void and of no effect. While commending the industry of learned counsel for the Appellants in espousing reasons why this decision is incorrect or perverse in the brief of argument filed for the Appellants, we find it worthy to mention that issue no. (III) discussed above which we conceded for the Appellants necessarily takes away the sting in issue no. (IV).”

According to learned Counsel, in so far as it is conceded on the part of the 1st – 140th Respondents that the originating summons proceedings would not afford the Court below or any other Court, including this Court sufficient opportunity of evaluating the myriad of conflicting affidavit depositions and documentary exhibits placed before that Court, as can be gleaned from the records of appeal before this Court, it would appear irresponsible for one to seek to argue or persuade this Court that a proper evaluation of the evidence was carried out in the Court below and that the conclusion reached by that Court on the merit is supported by the evidence.

Consequently, learned 1st – 140th Respondents’ Counsel canvassed in his brief of argument to have the matter ordered to be transferred to the Court below for oral evidence to be taken, upon the filing of the necessary writ of summons/statements of Claim and resolved one way or the other, whilst urging this Court to resolve this issue against the Appellants. The attitude of this Court herein and as it has to do with matters commenced by originating summons, is that the

affidavit of the parties amounts to pleadings and the Court must conscript the case of each party within the facts as shown in their various affidavits. In this matter and as it stands, I have carefully examined the depositions made by both sides of the divide in support of their cases and have found none to urge in favour of the 1st – 140th Respondents.

Against the backdrop of the foregoing, in which it has become glaring that the 1st – 140th Respondents have found a convenient way to tactically refuse and/or avoid condescending on the facts as expected of them, the question to probably address at this stage, is what is exactly the grouse of the 1st – 140th Respondents, which took them to the Court below in the first place? It is interesting to note that all the 1st – 140th Respondents have had to say for themselves is contained in their brief of argument filed in this Appeal on the 3-10-2020 at page two, paragraphs 2.1 to 2.3 as follows;
“The Respondents are at all material times members of the 1st Appellants at various wards, local government areas of Zamfara State. Sometimes on 5th, 12th and 19th of June, 2018

the 1st Appellant purported to have conducted congress elections to constitute its Zamfara State Chapter Executive Committees for all the 147 wards, 14 local Government Areas and State level to run or manage the affairs of the 1st Appellant in Zamfara State as enjoined by the Constitution of the 1st Appellant, revised to 2014.
At the end of the exercise the some persons herein represented by the 2nd – 7th Appellants were declared as winners and elected as members of the 1st Appellant’s executive committees at wards, local Government and state levels of the Party.
The Respondents herein felt aggrieved/dissatisfied with the conduct and outcome of the said congress elections hence proceeded to the Federal High Court Gusau, Division to institute an originating summons proceedings, which was heard as Suit No. FHC/CV/GS/27/2018 for themselves and several other members who were aggrieved by the outcome of the said congress election.”

However, on the flip side of this matter, at pages one to two of th20 at paragraphs e Appellants’ brief of argument filed on the 23-9-202.1 to 2.3 of their brief, this is what the Appellants have said:

“In keeping with the extant laws and the Constitution of All Progressives Congress, upon issuing due notices to its members and the general public, the 1st Appellant conducted its Congresses to elect the party executive members at the 147 Wards, 14 Local Governments and State level on the 5th, 12th and 19th of May, 2018 respectively.
When the congresses commenced, the 1st Respondent (who was the 1st Plaintiff at the trial Court, along with 2nd –140th Respondents), who never indicated their interests in contesting for elective positions in the said congresses by way of returning/submitting duly completed Nomination Forms at least 24 (Twenty Four) hours before the date of Congress, to the surprise of 1st Appellant requested for Nomination Forms and insisted that they must be allowed to contest for various vacant posts on the day of elections. When 1st – 140th Respondents realized that the 1st Appellant was determined on going ahead with the congresses, they constituted themselves into election umpires and later decided to declare and recognize themselves as the elected Executive Members of the All Progressives Congress in

Zamfara State, albeit without participating in any election or congress organized by the 1st Appellant in line with the extant provisions of the law.
When the 1st – 140th Respondents realized the futility of their actions at the conclusion of the congresses, they proceeded to file an action before the Federal High Court, sitting in Zamfara State in Suit No: FHC/GS/CS/27/2018 BETWEEN ALHAJI SIRAJO GARBA & 138 ORS vs. ALL PROGRESSIVE CONGRESS (APC) & 7 ORS on the 29th June, 2018. They challenged the outcome of the congresses held on the 5th, 12th and 19th of May, 2018 on the basis that they were allegedly not allowed to vote and be voted for on the dates of the congresses as members/delegates and candidates for the various executive offices of the party in Zamafara State.”
(Underlined, mine for emphasis).

political party that will enable him to approach the Court to complain that any of the provisions of the Electoral Act and the Guidelines of a political party have not been followed in the conduct of the congresses/primaries of the party. In other words, a person cannot approach the Court to complain that the political party prevented him from participating in the congresses/primaries since the issue of selection of candidates either for purposes of election or for party offices, is the prerogative of the political party concerned and the Court lacked the jurisdiction to interfere in such a matter, which is the internal affair of the political party. See LADO vs. CPC (2011) 18 NWLR (PT. 1279) 689; ALHAJI MUSTAPHA A. WUSHISHI vs. ENGR. MOHAMMED J. IMAM (2017) 18 NWLR (PT. 1597) 175 AT 211; PDP vs. SYLVA (2012) 13 NWLR (PT. 1316) 85.
Here is a situation in which the 1st – 140th Respondents, upon realizing that the 1st Appellant was determined on going ahead with the congresses, first began by constituting themselves into election umpires, rather than procuring the necessary forms to enable them participates in the congresses. They are to later

declare and recognize themselves as the elected Executive Members of the Appellants in Zamfara State, albeit without participating in any election or congress organized by the 1st Appellant in line with the extant provisions of the law. In anyways, a dispute between members of the party inter se or between a member or members on the one hand and the party on the other hand, is indeed an “intra-party affair”. See the case of PDP vs. KSIEC (2006) 3 NWLR (PT. 968) 565 AT 623. See also the case of PDP vs. SYLVA (Supra) at page 146, the apex Court held thus;
“Consequently, the Court does not have jurisdiction to make appointments of persons to hold party offices, represent a party in elections or to determine any dispute arising from the internal affairs of a political party.”
(Under lined, mine for emphasis).
This issue is therefore resolved in favour of the Appellants and against the 1st – 140th Respondents.

In the final analysis, this Appeal succeeds in part; the Notice of Preliminary Objection filed by the 1st – 140th Respondents had earlier on been dismissed. While the issue one in its first limb is

resolved in favour of the 1st -140th Respondents; the 2nd limb dealing with the issue of abuse of process of Court is resolved in favour of the Appellants. In respect of issue two, this is resolved in favour of the 1st – 140th Respondents to the effect that the matter giving rise to this appeal is not as a result of a fall-out of a pre-election matter. The issues three and four are resolved in favour of the Appellants. Consequently, the judgment delivered on the 7-8-2020 by the ZAMFARA State High Court in Suit No: ZMS/S/11/2020 is hereby set aside for being an abuse of process of Court. There shall be no orders as to cost as parties are expected to bear their respective costs.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the advantage of a preview of the lead judgment of my learned brother, Oho, JCA. I fully agree with his resolution of the four issues for determination in this appeal. I also agree with all his reasonings and conclusions. Further to that, I wish to add a few words of my own with respect to issues one and four.

Since the decision in SARAKI & ANOR V. KOTOYE (1992) LPELR – 3016 (SC), the Supreme Court, while relying on

its earlier decisions in OKORODUDU V. OKOROMADU (1977) 3 SC 21, HARRIMAN V. HARRIMAN (1989) 5 NWLR (PT. 119) 6 and OYEGBOLA V. ESSO WEST AFRICA INC. (1966) 1 ALL NIR 170, had continued to hold that the concept of abuse of judicial or Court process is imprecise. According to Karibi Whyte, JSC:
“It involves circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. It is recognised that the abuse of the process may lie in both a proper or improper use of the judicial process in litigation.”
Against this scope of its definition and application, His Lordship went on to add:-
“…the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues.”

Then as a matter of judicial principle, policy and philosophy the apex Court went on to maintain that:-
“…. multiplicity of actions on the same matter between the same parties even where there exist a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right per se. The abuse consists in the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice; such as instituting different actions between the same parties simultaneously in different Courts, even though on different grounds.”
This decision and its policy thrust has been consistently followed in a number of landmark decisions of the Supreme Court and this Court. See for example OGBORU & ANOR V. UDUAGHAN (2013) 5 — 6 SC (PT. 11) 145, DINGYADI & ANOR V. INEC & ORS (2010) 7 — 12 SC 105, ALLANAH & ORS V. KPOLOKWU & ORS. (2016) 6 NWLR (PT. 1507) 1, NABORE PROPS. LTD V. PEACE — COVER NIG. LTD & ORS (2014) LPELR- 22585 (CA) and ADVANCED COATING TECHNOLOGY NIG. LTD & ORS V. FIRST BANK NIG. PLC. (2008) LPELR — 3629 (CA).

In the circumstances of the instant appeal, the lower Court in Suit No. ZM/GS/11/2020 totally lost sight of the above hallowed principles of law and practice when it overlooked the parties and the reliefs sought in Suit No. FHC/GS/CS/27/2018. Had it done so, the lower Court would have been more cautious and circumspect, even less enthusiastic to take steps to overreach, prejudice and undermine the lawful business of a Court of co-ordinate jurisdiction. It smacks of perfunctoriness and off – handedness for the lower Court to gloss over and overlook some fundamental facts and circumstances in Suit N. FHC/GS/CS/27/2018, particularly the crucial fact of what was rendered therein being an appealable decision. It was an act of judicial indiscretion recklessness and indiscipline for the lower Court to purportedly sit on appeal over the decision of a Court of co-ordinate jurisdiction. My views here are fortified by my belief that upon a proper consideration of the processes in Suits No. FHC/GS/CS/27/2018 and ZMS/GS/11/2020, it is clear that the subject matter, parties and the issues in both actions are the same. This therefore, no doubt, amounts to

multiplicity of actions on the same subject matter against the same parties to annoy or irritate them. It is vexatious and frivolous, indeed the height of frivolity. The lower Court in ZMS/GS/11/2020 should have seen through the shenanigans of counsel to take the Courts on a roller coaster ride and to pull a wool over their eyes. There was a very clear and manifest forum shopping, leading to an abuse of the judicial process. In popular Nigerian parlance, it was like entering a bone chance bus.”
It is an abuse of Court process where there are series of actions over the same matter or issue instituted by a Claimant against the same defendants. The intention of the Claimant is obviously mala fide and in bad faith. See MOHAMMED V. DANTATA & ORS (2014), LPELR – 23465 (CA) where it was held that the issue of an abuse of judicial process is a complete defence and can be raised by a defendant to challenge the competence of the Claimant’s action or the jurisdiction of the Court to entertain it. A Court of law, in exercise of its jurisdiction, is empowered not to entertain an action that is tainted with an abuse of its process. It flows that

the issue of abuse of process is a foundational issue, a threshold issue and a question of competence and jurisdiction that is extrinsic to adjudication. The Supreme Court has given its blessings to this hallowed principle of law in DINGYADI V. INEC (2011) 10 NLWR (PT.1255) 347. In effect, the presence of an abuse of Court process in a matter is one of the notable instances that robs a Court of its jurisdiction to hear it. The two are Co-terminus and not mutually exclusive. Suit No. ZMS/GS/11/2020 was an abuse of Court process and the lower Court lacked jurisdiction to entertain it. It ought to have been struck out. It is accordingly struck out by me.

On the 4th issue for determination, I wish to point out that, as ably pointed out by my learned brother Oho, JCA, that the 1st – 140th Respondents failed to answer some of the most important, crucial and material points of law argued in the Appellants’ brief of argument. It is trite law that a Respondent’s brief of argument shall answer all material points of substance contained in the Appellant’s brief. It must also contain points or issues which a Respondent wishes to concede as

well as the strongest reasons why an appeal should not be allowed. See Order 19 Rules 3 (1), 4 (1) and (2) Court of Appeal Rules, 2016. In OGUNYE & ORS V. THE STATE (1999) LPELR 2356 (SC) 13 D – E, Iguh, JSC succinctly identified the purpose of a Respondent’s Brief thus:
“The main purpose of Respondent’s brief is to demonstrate, in appropriate cases, that no error was committed by the Court below in the judgment and to defend, within the limits of the law, the decision appealed against.”
Also in AJOMALE V. YADUAT & ANOR (1991) LPELR – 306 (SC) 16 C-D, the Supreme Court had explained in very graphic terms that:
“….a good Respondent’s brief has two broad functions. It is refutatory in that it answers the specific points upon which the Appellant’s brief is attacking the judgment appealed from. It is also supportive in that it advances arguments in support of the reasoning in the judgment appealed from. It is, therefore, unsatisfactory for a Respondent to do one and leave the other.”
It is against the backdrop of these that I find the brief of the 1st – 140th Respondents

in the instant appeal to be unsatisfactory and not fit for purpose.

For the above short views, that I too would allow this appeal in part. I abide by all the consequential orders in the lead judgment of my learned brother, Oho, JCA, including the order on costs.

ABUBAKAR MAHMUD TALBA, J.C.A.: I had the opportunity of reading in draft the lead judgment just delivered by my Learned brother FREDERICK O. OHO, JCA. He has dealt exhaustively with all the live issues canvassed in this appeal. I have nothing to add to a well written judgment. I agree that the preliminary objection of the 1st to 140th Respondents be and is hereby dismissed. The appeal succeeds in part. The first leg of issue one having been resolved in favour of the 1 to 140th Respondents, while the second leg of issue one dealing with abuse of Court process is resolved in favour of the Appellants. Issue two has been resolved in favour of the 1st to 140th Respondents to the effect that the matter giving rise to this appeal is not as a result of a fallout of pre-election matter. Issues three and four were also resolved in favour of the Appellants. I abide by the consequential orders in the lead judgment.

Appearances:

MAHMUD ABUBAKAR MAGAJI, SAN with him, CHRIS KELECHI UDEOYIBO ESQ., and MUSTAPHA RABIU ESQ. For Appellant(s)

JOHN C. SHAKA ESQ., with him, IBRAHIM ABDULLAHI ESQ., and SHAMSU A. DAUDA ESQ. – for the 1st – 140th Respondents;
M. H. HASSAN ESQ. – for the 141st Respondent. For Respondent(s)

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