BARR. ENYINNA ONUEGBU & ORS v. GOVERNOR OF IMO STATE & ORS (2015)

BARR. ENYINNA ONUEGBU & ORS v. GOVERNOR OF IMO STATE & ORS

(2015)LCN/8031(CA)

In The Court of Appeal of Nigeria

On Friday, the 20th day of November, 2015

CA/OW/229/2012

RATIO

PRACTICE AND PROCEDURE: PRELIMINARY OBJECTION; WHEN CAN PRELIMINARY OBJECTION BE RAISED

We have also held several times, relying on the Apex Court’s decisions, that a preliminary objection, pursuant to Order 10 Rule 1 of this Court’s Rules, 2011, is not the option, where a party is merely objecting to the competence of a ground(s) of appeal or issue distilled therefrom. A preliminary objection can only apply, where there is objection to the competence of the appeal as a whole, like where notice of appeal is defective, or is not there and/or where the records of appeal is challenged, or all the grounds are defective.
See the case of Alaribe v. Okwuonu (2015) LPELR-24297 CA, where it was held:
“I think, it is necessary to state, again, that there is a difference between raising a preliminary objection against an appeal, under Order 10 Rule 1 of the Court of Appeal Rules, 2011, and raising an objection against a ground(s) of appeal, for being defective. Whereas, in the former, Notice of Preliminary objection ought to be filed, separately, at least 3 clear days to the hearing of the appeal, to give the opponent due notice, before arguing it, either in the Respondent’s brief or separately, in the latter situation, the Respondent only needs to file a motion to highlight the defects in the ground(s), and the same can be properly raised in the Respondent’s brief and argued therein See the case of Innocent Okereke & Anor v. Innocent Adiele CA/PH.421/2008, a recent decision of this Court, delivered on 20/11/14, where we said; “The position of this Court, as per the authorities of the Apex Court, has always been that, where an objection is against one or more grounds of appeal, then the objector need not file a “preliminary objection”, but a motion, notifying the Appellant of the Respondent’s intention to contest the competence of those grounds of appeal or issue(s). Of course, such objection can be raised and argued in the Respondent’s brief, without the need to file a separate process to that effect. See the case of General Electric Co. v. Harry Akande (2011) 4 NSCQR 611. See also Adejumo v. Olawiye (2014)12 NWLR (Pt 1421) 252 at 265) where the Supreme Court said; “A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal… Where a preliminary objection would not be the appropriate process to object or show to the Court defects in the processes filed before it, a motion on notice filed complaining about the grounds or defect would suffice…” per. ITA GEORGE MBABA, J.C.A.

PRACTICE AND PROCEDURE: ABUSE OF COURT PROCESS; CIRCUMSTANCES THAT WILL GIVE RISE TO ABUSE OF COURT PROCESS

On the first issue – Abuse of the Court process – authorities are replete, that filing multiple actions in different Courts or in the same Court, over the same subject matter or issue, involving the same parties, is offensive. Also taking out an action for the purpose of irritating, vexing or annoying an opponent and/or subjecting the machinery of justice administration to ridicule and scandal, by so doing, all amount to abuse of the judicial process or abuse of the process of Court. See the case of Tailor & Ors v. Balogun & Ors (2012) LPELR – 19673 (CA); (2013) 10 WRN 137, and the case of Dingoli v. Bara’u (2012) All FWLR (pt.609) 1156 at 1175 where this Court said: “Abuse of process of Court is a term generally applied to a proceeding which is wanting in bonafide and is frivolous, vexations or oppressive. It can also mean abuse of legal procedures or improper use of judicial process. Adefulu v. Secretary, Ikene Local Government (2002) 42 WRN 68; African Re-insurance Corp. v. J.D.P. Construction Nig. Ltd (2003) FWLR (pt.176) 667.
In the case of Saraki v. Kotoye (1992) 11 – 12 SCNJ (which was heavily relied upon by the parties in this case) the Supreme Court said:
“The abuse consists in the intention, purpose and aim of the person exercising the right of issue of judicial process to harass, irritate and annoy the adversary, and interfere with administration of justice, such as instituting different actions between the same parties, simultaneously, in different Courts even though on different grounds”
Also in the case of Ogoejeofo v. Ogoejeofo (2006) 3 NWLR (pt. 966) 205 it was held that the circumstances that will give rise to abuse of Court process include:
“(a) Instituting multiplicity of actions on the same subject matter against the same opponent on the same issue(s) or multiplicity of actions on the same matter;
(b) Instituting different actions between the same parties, simultaneously, in different Courts, even though on different grounds;
(c) Where two similar processes are used in respect of the exercise of the same right.
(d) Where an application for adjournment is sought by a party to an action to bring an application to Court for leave to raise issues of facts already decided by the Court.
(e) Where there is no law supporting a Court process or where it is premised on frivolity or recklessness”
The above does not, however, exhaust the circumstances in which abuse of the Court process can be inferred, as the definition and application of this procedural mischief, appears to be open-ended and depends on each given circumstance.
In the case of Ajonuma and Ors v. Nwosu & Ors (2014) LPELR – 24015 (CA) it was held that actions or motions filed for sole purpose of frustrating or delaying the trial of substantive case at the Lower Court is an affront to the principles of sound adjudication and border on abuse of the Court process. per. ITA GEORGE MBABA, J.C.A.

APPEAL: APPLICATION FOR THE ELONGATION OF TENURE; WHETHER AN APPELLATE CAN SEEK EXTENSION OF TIME OF HIS TENURE AS COMPENSATION FOR THE TIME LOST
In the case of Akano v. Nwabuisi & Ors (2015) 6 CAR 22, where Appellant had been wrongly removed from office and later restored by the Court, after he had lost substantial part of his statutory period of service to his Club, it was held by this Court, relying on the case of Ladoja v. INEC (2007) 12 NWLR (pt.1047) 115:
“Appellant cannot seek extension of time, indirectly, to complete his tenure, to compensate for the period he lost, when out of office, due to the wrongful suspension of his membership of the Club. I think the case of Ladoja v. INEC? applies here. Ladoja was, wrongfully, removed from office as Governor of Oyo State by impeachment. When the impeachment was reversed by the Court and he was restored to office, he had already lost 11 months of his 4 year term as Governor. He went back to Court for an order to be allowed to finish his 4 year term. The Supreme Court, in a full panel of 7 Justices, refused, as that would have amounted to elongation of his 4 year term, which was static and fixed.”
In that case of Ladoja v. INEC (Supra) the Supreme Court said:
“Much as one may be in sympathy with the plaintiff/Appellants cause, it seems to me that to accede to his request will occasion much violence to the Constitution. This Court can interprete the Constitution, but it cannot re-write it. In awareness of the possibility that an occurrence may prevent a Government from being sworn in on the same date as his counter parts in the country, Section 180(2) states:
That tenure be computed from the date the oath of allegiance and oath of office is taken There is no similar provision to protect a Governor improperly impeached. See also Ehirim v. ISIEC (2008) 15 NWLR (pt.1111) 443; Marwa v. Nyako (2012) LPELR – 7837 (SC) (2012) 6 NWLR (pt.1296) 199, on fixed tenure and when it starts to count. per. ITA GEORGE MBABA, J.C.A.

CONSTITUTIONAL LAW: RIGHT OF ELECTED OFFICERS; THE LAW ON THE RIGHT OF ELECTED OFFICERS OF THE LOCAL GOVERNMENT SYSTEM TO ENJOY GUARANTEED TERM OR FIXED TENURES

The law is never lacking in intention or clarity that by Section 7(1) of the 1999 Constitution of Federal Republic of Nigeria (as amended) that: “The system of Local Government by democratically elected local government council is under this Constitution guaranteed; and accordingly the Government of every state shall, subject to Section 8 of this Constitution, ensure their existence under a law, which provides for the establishment, structure, composition, finance and functions of such councils.”
There are scores of decided cases of the superior Courts affirming and enforcing the above Constitutional provisions. The problem is always in the absence of Political will, by Political leaders, especially Governors, to give effect to that provision. And the Legislature, which should check on the Executive to ensure the protection of democratically elected local government system, unfortunately, appears to be in alliance with the Governor in raping the Constitutional Provisions of Section 7(1) of the Constitution to install contrivance, in the name of ‘Transitional Committee’ or “Caretaker Committee”, which has been condemned by the superior Courts. See appeal No.CA/OW/215/2011,delivered on 5/7/12. See also the case of Dogari v. AG of Taraba State (2011) All FWLR (PT.603) 1926, holding 2 and 3, where this Court said:
“By the provisions of Sections 7 and 8 of the Constitution of the Federal Republic of Nigeria, 1999, the system of democratically elected Local Government Councils is under the constitution guaranteed. Accordingly, the Government of each State, shall subject to the Constitution, ensure their existence under a law which provides for the establishment, structure, composition, finance and functions of such councils. Although, the word dissolution is not in the Section 7(1) of the Constitution, the House of Assembly which has powers to make laws to regulate the affairs of a Local Government Council, can make a law for the dissolution of an erring Local Government Council and for bye election to prevent chaos and disorder. Guaranteeing the system of Local Government by democratically elected Local Government Council under the Constitution means that the Local Government Council must be democratically elected one and it is in order, if a Local Government Council is dissolved and a bye election is ordered. It will be otherwise, if the council is dissolved and a caretaker committee is appointed in its place. In the instant case, where the defendants amended the applicable law to the Local Government Council to enable the Governor dissolve the council and replace it with a caretaker’s committee, the trial Court erred by not declaring the law inconsistent with the Constitution. (Akpan v. Umah (2002) FWLR (Pt.110) 1820, (2002) 7 NWLR (Pt.767) 701; Akpan v. Attorney General, Cross River State (1982) 2 FNR 177; Attorney General, Plateau State v. Guyol (2007) 16 NWLR (Pt.1059) 57 referred to (Pp.1974 – 1975, paras. G – D).
See also Adamawa State House Assembly v. Tijjani (2012) All FWRL (Pt.615) 330 at 377, where it was held:
“I believe that Section 7(1) of the Constitution expects the State Assembly to invoke and establish the requisite democratic culture/atmosphere which they (State Assembly) enjoy in the Constitution, to operate in the Local Government system as envisaged in Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999.” per. ITA GEORGE MBABA, J.C.A.

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

1. BARR. ENYINNA ONUEGBU
Chairman, Ngor Okpala Local Government Council
2. MRS. RUBY UCHENNA EMELE
Chairman, Isiala Mbano Local Government Council
3. CHIEF BOB DESMOND UGWUIBE
Chairman, Ahiazu Mbaise Local Government Council
4. NZE CHARLES ONWUNALI
Chairman, Aboh Mbaise Local Government Council
5. CHIEF CHARLES EZEKWEM
Chairman, Okigwe Local Government Council
6. CHIEF IKECHI ALBERT NNOROM
Chairman, Ehime Mbano Local Government Council
7. CHIEF NNADIEKWE VICTOR AMOBI
Chairman, Nkwerre Local Government Council
8. BARR. F.M. NNADI
Chairman, Orsu Local Government Council
9. CHIEF FISHER EZEUGO
Chairman, Oru East Local Government Council
10. CHIEF JOHN FRANK UGALIEGBULAM
Chairman, Oru West Local Government Council
11. PRINCESS JOAN NZERIBE
Chairman, Oguta Local Government Council
12. CHIEF ONYEMA NWACHUKWU
Chairman, Mbaitoli Local Government Council
13. CHIEF SAM AKAMEGWO
Chairman, Ikeduru Local Government Council
14. CHIEF EMMA ODOR
Chairman, Owerri Municipal Council
15. DR. ERICK K. OGWO
Chairman, Owerri North Local Government Council
16. CHIEF IKECHUKWU AWULONU
Chairman, Ihitte Uboma Local Government Council
17. CHIEF BASIL AMOBI EKWEKE
Chairman, Obowo Local Government Council
18. ENGR. IKENNA ELEZIEANYA
Chairman, Owerri West Local Government Council
19. CHIEF EDDY IKWUBUO
Chairman, Njaba Local Government Council
20. SIR B. C. NWADIKE
Chairman, Isu Local Government Council
21. CHIEF EZEKIEL CHUKWUKERE
Chairman, Nwangele Local Government Council
22. CHIEF EDWARD CHINEDU OBIOHA
Chairman, Orlu Local Government Council
23. PRINCE C.E. IKEGWURUKA
Chairman, Ohaji/Egbema Local Government Council
24. DR. BEDE NZENWA
Chairman, Ezinihitte Local Government Council
25. BARR. LADY NKEIRUKA IBEKWE
Chairman, Onuimo Local Government Council
26. CHIEF KELVIN ERONINI NWANAFORO
Chairman, Ideato South Local Government Council
27. CHIEF BONAVENTURE MBONU
Chairman, Ideato North Local Government Council Appellant(s)

AND

1. GOVERNOR OF IMO STATE
2. ATTORNEY GENERAL OF IMO STATE
3. IMO STATE HOUSE OF ASSEMBLY
4. IMO STATE INDEPENDENT ELECTORAL COMMISSION Respondent(s)

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): By originating summons filed on 3/8/12, in Suit No. HOW/499/2012, in High Court Imo State, Appellants sought the Lower Court’s determination of whether having regard to Section 7(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Section 23(1) of the Local Government Administration Law No. 15 of 2000, as well as the Notice of Local Government Elections dated 25/2/2010 and the Guidelines thereof, the Local Government Administration (Amendment Law) No. 15 of 2009, (a retroactive law) was applicable to the tenure of the Appellants as Chairmen of the Local Government Councils in Imo State. They also sought another determination whether, having regard to Section 7(1) of the said Constitution, and the Judgment of this Court (Court of Appeal) delivered on 5/07/2012 in appeal No. CA/OW/215/2011, which declared the 1st Respondent’s dissolution of Local Government Councils on the 6/6/11 as unconstitutional, null and void, the period of 13 months for which the Appellants were illegally removed from office should form part of the Appellants statutory tenure as duly elected Chairmen of the

27 Local Government Councils.

Appellants had sought six reliefs from the Court below, based on the above questions for determination, which included a declaration that they were entitled to complete their tenure; in summary that the 1st Respondent should not be allowed to take advantage of his violation of Section 7 of the Constitution (as amended) through his contemptuous refusal to give effect to the Court of Appeal decision nullifying the dissolution of the Councils; that the 1st Respondent had deployed thugs and all manners of pranks to stop the Appellants from returning to their offices after the delivery of the Court of Appeal Judgment.

The Respondents had filed notices of Preliminary Objection to the suit, which were duly reacted to by the Appellants and arguments taken thereon. On the date the trial Court adjourned to give ruling on the Preliminary Objections, the trial Court rather delivered ‘Judgment’ in the cause of which it dismissed the Appellants’ case.

?That is the decision Appellants are appealing against in this appeal. They filed amended Notice and grounds of appeal on 13/3/2014, with the leave of this Court and disclosed five

(5) grounds of appeal. They filed their Brief of arguments on the same 13/3/14, donating three (3) Issues for determination, as follows:
(1) Whether the Court below was right to hold that the Appellants’ Suit constituted an abuse of process (Grounds 1, 2 and 3)
(2) Whether the Court below was right to hold that the case of Appellants bothered on elongation of tenure (Ground 4)
(3) Whether the Court below was right to disregard the incompetent status of the Abuja Suit number FHC/ABJ/CS/483/2012, that is, Exhibit A, being an uncertain public document upon which it predicated its decision that the Suit that gave rise to this appeal is an abuse of process. (Ground 5).

?The 1st Respondent filed a Notice of Preliminary Objection on 10/11/14 finding fault with issues 2 and 3 of the Appellant’s brief and urging us to strike out the same. In the alternative he urged us to strike out paragraphs 4.44 to 4.51 of Appellants’ brief of argument, saying the same were missing from the copy of the Appellants’ brief served on him. The 1st Respondent also filed his brief of argument on 10/11/14, and argued the preliminary objection on pages 4 to 8 thereof. He

thereafter responded to the brief of the Appellants by adopting the 3 issues distilled by Appellants for the determination of the appeal.

The 2nd Respondent filed his brief on 23/2/15 and also adopted the 3 issues for determination of the appeal by the Appellants.

The 3rd Respondent did not file any brief, but the 4th Respondent did, on 11/4/14 and distilled 3 issues for consideration as follows:
(1) Whether the Court below was right to hold that the case of the Appellants bothers on elongation of tenure of office of the Appellants
(2) Whether this honourable Court has jurisdiction to entertain this appeal, having regard to its decision on CA/OW/215/2011
(3) Whether the Court below was right to hold that the case of the Appellants in PHC/499/2012 (sic) constitutes an abuse of Court process.

?Appellants’ had filed a reply brief deemed duly filed on 22/10/15 to contest the 1st Respondent’s objection. At the hearing of the Appeal on 28/10/15, the 1st Respondent’s Counsel adopted the arguments on pages 4 to 8 of the 1st Respondents briefs relating to the objection and urged us to strike out issues 2 and 3, or strike out paragraphs

4.44 to 4.51 of the Appellants’ brief; that the said Appellants’ brief was inchoate, as Appellants deliberately omitted their arguments contained in paragraphs 4.44 – 4.51 of the brief of argument served on 1st Respondent. She relied on Order 18 Rule 4(2) of the Rules of this Court 2011, to say that the Respondent’s brief shall answer all material points of substance contained in the Appellant’s brief; that the 1st Respondent could not do this, the arguments in the said paragraphs 4.44 to 4.51 having been omitted in the Appellants’ brief. Counsel called our attention to the brief of the Appellants, particularly, paragraph 4.44 which she said the argument therein was not completed and paragraph 4.52, which showed paragraphs 4.45 to 4.51 were omitted; that that placed 1st Respondent in a predicament how to reply or respond to the arguments the brief being inchoate, affecting issues 2 and 3 of the appeal and making them incurably defective and in-competent.

?Counsel said that this vital omission has denied the 1st Respondent his right of fair hearing, placing him at a disadvantage; that all parties before the Court are to be given equal opportunities to

present their cases. She relied on Section 36 of the 1999 Constitution of Federal Republic of Nigeria and on the case of Olufeagba v. Abdur-Raheem (2010) 17 WRN 23 at 77 – 78; Womiloju v. Anibire (2010) 27 WRN 1; Inakoju v. Adeleke (2008) 30 WRN 1; Basinco Motors Ltd v. Woermaun-Line (2010) 10 WRN 1 at 36.

Counsel urged us to strike out the issues 2 and 3 by the Appellants, affected by the omission of the paragraphs 4.44 to 4.51 of the brief for being inchoate and incompetent.

?Appellants’ Reply brief, paragraphs 2.00 to 2.08 were dedicated to the preliminary objection, wherein the Appellants’ Counsel said what 1st Respondent argued as “Preliminary Objection” was unknown to law; that omission in a brief of argument does not make the brief incompetent and does not call for filing a preliminary objection. He said that the practice at the Bar is that where there are omissions in any process filed in Court, the lawyer on the other side, either gets back to the Registry to collect a clean and complete copy or calls his colleague (on the other side) to give him the correct copy; that if 1st Respondent had good intentions, he would have resorted to any of the

two options. Counsel them argued on when a brief can be said to be defective or in-competent, and relied on the by Philip Nnaemeka – Agu CON: Generally Manual of Brief writing (as revised by Tom Anyafulude Enugu: Syon Prints Ventures Ltd, 2010) pages 379 – 436.

Counsel explained that the omission complained about was caused by sorting errors, upon being granted leave to re-file the Brief of argument; that “It was not unlikely that sorting errors may have occurred in a few of the copies when compiling for binding. But certainly, unless a mischief is intended, there is nothing wrong with referring to the first copy that accompanied the motion for extension of time or call the Counsel from the other side or even go to the Registry of the Court for a clear and complete copy.”

RESOLUTION OF THE OBJECTION:
As is expected, we have to consider what 1st Respondent called ‘preliminary objection’ first, before going to the merits of the Appeal, being a threshold issue – Okorie v. Chukwu (2014) LPELR – 23744 (CA); Rabiu v. Adebayo (2012) All WLR (Pt 643) 1836; Samba Petroleum Co. Ltd v. First City Monument Bank (2013) LPELR – 21874; (2014) 3 NWLR

(Pt.1394) 346.

Appellants’ Counsel was right when he observed that what 1st Respondent raised as ‘preliminary objection’ in this Appeal, was not worth that name; that issues or complaints of omission of paragraphs or pages in a brief or process of Court, served on a party, should not cause a storm, resulting in filing of preliminary objection to nullify the process or declare it incompetent; that where the correct atmosphere prevails, the counsel served with incomplete process should cross-check with Court Registry or put a call to the counsel who filed the process, to get the correct copy. Such complaint can also be raised, orally, in Court, calling attention of the counsel on the other side and the Court, to the fact of a defective process served on him and seeking to be served with the correct version.

That is where the beauty of friendliness of counsel at the Bar is usually demonstrated/expected, to the admiration of even their clients and the members of the public. Lawyers are always called and addressed as “learned friends” The test of that friendship must be seen in cordiality, respect and candour, demonstrated towards each other and the

Court, in the handling of clients’ causes and matters in Court. Thus, Counsel should be honest and forth-right in the approach of matters in Court, seeking to unravel the truth and facts needed to attain justice in a given case, instead of resorting to a hide and seek game, or cat and mouse stance, to ambush and devour each other. That noble tradition must be maintained and upheld by Counsel in their legal representations and advocacy, and they must refuse to take up fighting stance hoping to impress their clients.

to state, again, that there is a difference between raising a preliminary objection against an appeal, under Order 10 Rule 1 of the Court of Appeal Rules, 2011, and raising an objection against a ground(s) of appeal, for being defective. Whereas, in the former, Notice of Preliminary objection ought to be filed, separately, at least 3 clear days to the hearing of the appeal, to give the opponent due notice, before arguing it, either in the Respondent’s brief or separately, in the latter situation, the Respondent only needs to file a motion to highlight the defects in the ground(s), and the same can be properly raised in the Respondent’s brief and argued therein See the case of Innocent Okereke & Anor v. Innocent Adiele CA/PH.421/2008, a recent decision of this Court, delivered on 20/11/14, where we said; “The position of this Court, as per the authorities of the Apex Court, has always been that, where an objection is against one or more grounds of appeal, then the objector need not file a “preliminary objection”, but a motion, notifying the Appellant of the Respondent’s intention to contest the competence of those grounds of appeal or issue(s). Of course,

such objection can be raised and argued in the Respondent’s brief, without the need to file a separate process to that effect. See the case of General Electric Co. v. Harry Akande (2011) 4 NSCQR 611. See also Adejumo v. Olawiye (2014)12 NWLR (Pt 1421) 252 at 265) where the Supreme Court said; “A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal… Where a preliminary objection would not be the appropriate process to object or show to the Court defects in the processes filed before it, a motion on notice filed complaining about the grounds or defect would suffice…”

Be that as it may, I think the issue to settle in the objection raised by the 1st Respondent, is worth considering, if the Appellants’ Brief relied upon in this appeal, is found to be as the 1st Respondent painted – inchoate with paragraphs 4.44 to 4.51 (8 paragraphs) still missing, especially, as Appellants admitted ‘sorting errors’ in the compilation of the brief. Unfortunately, Appellants’ did not do any pagination of their Brief, filed on 13/3/14, to help them identify any missing paragraph/page, easily.

And Appellants’ Counsel’s combative style too did not help matters. Rather than use the opportunity of the complaints by the 1st Respondent (who also adopted a wrong and combative approach) to correct the error, and supply the 1st Respondent (and may be other parties) with the correct/complete Brief, Counsel for Appellant in the Reply Brief, said:
“My lords, the 1st Respondent is totally off-track. The so called preliminary objection is an abject non issue. Before now, we had filed an application for extension of time wherein we sought to inter alia file our brief of argument, which was annexed thereto. Upon the grant of the said application, we had to re-file the brief of argument. It is not unlikely that sorting errors may have occurred in a few of the copies when compiling for binding. But certainly, unless a mischief is intended, there is nothing wrong with referring to the 1st copy that accompanied the motion for extension of time or call the Counsel from the other side or even go to the Registry of the Court for clear and complete copy.” See paragraph 2.07 of the Reply Brief.

Unfortunately, what Appellants called ‘sorting errors (which) may

have occurred in a few of the copies when compiling for binding’ found its way into the Courts’ Copy in the file, as the Appellants’ Brief filed on 13/03/14, before me now (which was not paged) does not contain the paragraphs 4.45 to 4.51 complained about by the 1st Respondent. The paragraph 4.44, which is reproduced below, is inchoate and does not make much sense:
“4.44 The obvious implication of the foregoing is that the Supreme Court did not consider a bare literal counting of four years in computing the tenure of the Appellants as governors in their various States. Governors all over Nigeria, except in very few instances, are usually sworn in on the 29th day of May of each?”
The next page of the brief opens with:
“(2) The certificate mentioned in subsection (1) of this section shall be dated and subscribed by such officer with his name and his official title, and shall be sealed whenever such officer is authorised by law to make use of a seal, and such copies do certified shall be called certified copies.
4.52 A calm examination of the 1st Respondents Exhibit A shows?”

?It is obvious from the above, that the omissions,

complained about by 1st Respondent was not confined to the Appellants’ brief served on him. (1st Respondent). I have also called for the original case file in this appeal and the other files of my colleagues and what I find is not different from what I stated above. Appellants’ Counsel in his Reply brief had suggested the need for 1st Respondents’ Counsel to resort or refer “to the first copy that accompanied the motion for extension of time or call the Counsel from the other side or even go to the Registry of the Court for a clear and complete copy” That advice, apparently, was not devoid of the same “mischief” which Appellants’ Counsel was complaining of, against the 1st Respondent. 1st Respondent could not have resorted “to the first copy that accompanied the motion for extension of time” to get the authentic brief filed by the Appellants, as that process was no longer valid, having been only an exhibit meant to facilitate grant of the extension of time, to file the Brief complained of. Of course the 2nd advice to call the Counsel from the other side, appeared not useful, considering the rebuff or combative stance of Appellants’ Counsel even in this Reply.

And lastly, the 3rd advice – resort to the Registry for clear, complete copy, would not have made any difference in this case, going by the defects in the copies of the Appellants’ brief in the Courts’ files!

There is therefore substance in the 1st Respondent’s complaint (though, wrongly tagged, preliminary objection) as to the inchoate nature of the Appellants’ brief, relating to some issues distilled by Appellants for the determination of the Appeal.

A close look at the brief show that Appellant had argued the issue one, completely, from paragraph 4.00 to 4.16 of the brief, and issue two, extensively, from paragraph 4.12 to 4.44 of the brief, though not, concluded. It is only the issue 3 that the omission of paragraph 4.44 to 4.51, really affected.
I shall, therefore, consider that it is only the issue 3 that is affected, in whole, by the inchoate nature of the brief. The said issue 3 and the purported arguments in paragraphs 4.45 to 4.51 (if they were in respect of the issue) are therefore deemed abandoned and struck out. See Rose Star Int. Ltd & Anor v. Indo Nigerian Bank Ltd (2014) LPELR – 23646; Ebute v. UBN Plc (2012) 2 NWLR (Pt.1284)

254; Odusote v. Odusote (2012) 3 NWLR (Pt.1288) 748.

I shall therefore consider this appeal on the remaining issues 1 and 2, raised by Appellants, as I uphold the objection by 1st Respondent, in part.

Appellants’ Counsel, Ngozi Olehi Esq, on issue 1, had argued that the trial Court was not right to hold that Appellants’ suit constituted an abuse of the process, when it said:
“It is self evidence that the questions raised in both suits are the same and in the circumstances the suit before this Court is an attempt to litigate on the same issue and it is immaterial that the Claimants in this suit are defendants in the earlier suit. As stated earlier, this suit is an originating summons. The nature of the remedies are (sic) consequential to the interpretation.” (page 586 of the Records)

?Counsel submitted that that other suit, which the trial Court relied upon to make the above decision, had C.O.C Akaolisa and the Peoples Democratic Party as the plaintiffs at the Federal High Court, Abuja, and those persons are not parties in this suit, which gave rise to this appeal; that as legal personalities, the said plaintiffs at the Federal High Court had

right, as individual and political party, to take the action, in view of the political circumstances of the unconstitutional dissolution of the Local Government Councils in Imo State; that the Appellants were only made defendants in the Abuja suit and at all times, material in that suit, Appellants had not been served; that this suit by Appellants, was filed on 3/8/12, the same day the Abuja suit was filed.

Counsel conceded that multiplicity of suit by the same parties and on the same subject matter amounts to abuse of Court process, relying on Ogoejeofo v. Ogoejeofo (2006) All FWLR (Pt. 301) 1792 at 1797; Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156; Okoromadu v. Okoromadu (1992) 9 NWLR (pt.264) 156; Okorodudu v. Okoromadu (1977) 3 SC 21. He submitted that the Appellants were not instrumental to the filing of the Abuja suit; that C.O.C Akaolisa and the Peoples Democratic Party, who originated the Abuja suit, had constitutional right to do so, separately, or jointly with others; that their own choice or blunder in adding the Appellants, as Defendants in that case, should not affect the Appellants’ right to sue or the right of the Appellants to prosecute their

own case in Imo State.

He also argued that, assuming (without conceding) that, the parties in the two suits were the same, that the law is trite as to which of two pending actions purportedly constituting an abuse will be vacated. He relied on Dingyadi v. INEC (2010) All FWLR (pt.550) 1204 at 1255; that what the trial Court was supposed to do, if it was not to predicate its decision on a guess work, was to look at the indicated times of filing of the processes. He said that the Abuja suit was filed by 1.40 pm on 3/8/12 and this case at hand was filed on the same 3/8/12, though the filing time was not endorsed on the process; that the 1st Respondent who was canvassing the argument of abuse of the process had a duty to move the trial Court to take oral evidence to ascertain the exact time when the Owerri suit was filed. He submitted that the trial Court went into philosophy and bare speculation, when it resolved that the Owerri suit was the one to sacrifice for the claimed abuse of the process, vis a vis, the suit in Abuja High Court.

?Counsel argued that the approach by the trial Court made it to down play the seriousness of the constitutional issue it was

called upon to determined and to abdicate its responsibility, thereto. He referred us to the case of Adesanya v. The President of the Federal Republic of Nigeria (1981) 5 SC 112; (1981) 2 NCLR 358; (1981) 12 NSCC 1461 (1981) 1 All NR (Pt.1) 1, (2001) FWLR (Pt.46) 859, (2002) 44 WRN 80.

?On issue 2, whether the trial Court was right to hold that the case of the Appellants bothered on elongation of tenure, which related to ground 4 of the appeal, Counsel answered in the negative. Counsel recounted, in brief, what had happened in the State, surrounding the case; that they were sworn in as chairmen of the various Local Government Councils on the 9th day of August 2010, but on 6/6/11, the 1st Respondent, purportedly, dissolved the Councils and on 6/7/2012, the Court of Appeal set aside the decision of the State High Court, validating the wrongful and unconstitutional act of the 1st Respondent and reinstated the Appellants, and by then, the Appellants had been out of office for thirteen months. He said that the 1st Respondent did not appeal against the decision of the Court of Appeal, but crudely resisted every of the Appellants to resume in their various Council;

that immediately the Court of Appeal gave its decision, the 1st Respondent directed all local government staff in the State to proceed on public holidays, whereas, under Item 51 of the Exclusive Legislative list only the Federal Government can declare public holidays. Counsel said when the said Public holidays were coming to an end, the 1st Respondent asked, the directors of Administration and General Services (DAGS) and the Treasurers of all the Councils to proceed on a 3 weeks seminar. Thus, from 7/7/12 to 9/8/12 and even several months thereafter, the 1st Respondent effectively, but illegitimately, paralysed the Local Government system in Imo State, just to make sure that the judgment of this Court was rendered useless and the Appellants kept out of office; that when the 1st Respondent assumed that the three years tenure of the Appellants, counting from 9/8/10 had ended, he jubilantly chanted to the Appellants that their tenure had expired!

Counsel said that the unfortunate scenario painted above gave birth to the Appellants suit, on appeal. He queried whether the pranks or ‘bravery’ or ‘wisdom’ of the 1st Respondent, as summarised above, to defeat

Section 7(1) of the 1999 Constitution (as amended) and to, contemptuously thwart the decision of this Court, can be construed to be the intention of the makers of the Constitution, to make the Court below to validate same?

Counsel answered the above poser in the negative and added that the Respondents were wrong to rely on the case of Marwa & Anor?v.?Nyako & Ors (2012) All FWLR (Pt.622) 1621 at 1670 to think that Appellants’ case was one seeking tenure elongation. Counsel went to India to seek interpretation, to unravel the internment of the lawmakers with regards to Section 7(1) of the Constitution. He relied on the by Justice G.P. Singh – Principles of Statutory Interpretation, 17th Edition (2010) page 2, which says:
“A statute is an edict of the Legislature and the conventional way of interpreting or construing a statute is to seek the ‘intention’ of its maker. A statute is to be construed according “to the intent of them that made it and the duty of the judicature is to act upon the true intention of the legislature – mens or sententia legis. See also Vishnu Pratap Sugar Works (Private) Ltd v.?Chief Inspector of Stamp, U.P. AIR 1968

SC 102 at 104; Institute of Chartered Accountants of India v.?Prince Warehouse AIR 1998 SC 74, Maunsell v.?Olins (1975) 1 All ER 16 at 19 HL.”

Counsel agreed with the learned author, that legislation in a modern state, is actuated with some policy to curb some public evil or to effectuate some public benefit; that the legislation is primarily directed to the problems before the legislature based on information derived from past and present experiences. He said that the position in India follows what obtains in England and relied on R (on the applications of Quintavalle) v.?Secretary of State for Health (2003) 2 All ER 113 at 118, where the House of Lords, Per Lord Bingham declared: Every Statute other than a pure consolidating statute, is after all, enacted to make some changes, or address some problems, or remove some blemish or effect some improvement in the national life. The Court’s task, within the permissible bounds of interpretation, is to give effect to Parliament’s purpose. So the controversial provisions should be read in the con of the statute as a whole and the statute should be read in the historical con of the situation which led to

its enactment.

Relying on the above, Counsel said that the purpose or object of an enactment relates to the mischief to which the enactment is directed and its remedy; that legislature intention relates to the legal meaning of the enactment; that if the present scenario in the instant case is sustained, it would mean a Governor may dissolve an elected Local Government Council few months after its inauguration. Legal proceedings will be taken and by time it crawls through the Courts, the tenure will have expired and the Governor will tell his victims that by virtue of effluxion of time, they cannot go back to the Councils, notwithstanding that they have been re-instated by the Court of Appeal; that this sounds, not just like a joke, but looks primitive, or at best childish and should not be associated with Nigeria’s nascent democracy; that the above Could not have been the intention of the legislature, with respect to Section 7(1) of the 1999 Constitution (as amended) and Section 36(3) of the Law No. 15 of 2000, as well as in the totality of circumstances that gave rise to this action. He relied on the Indian case of Reserve Bank of India v.?Perless

General Finance and Investment Co. (1987) 1 SCC 424 (Pt.450) AIR 1987 SC 1023.

Counsel said that the ugly antecedents of the instant case will certainly produce unreasonable results that will, inter alia, destroy democratic roots and encourage political ruthlessness. He urged us to hold that the claimants were entitled to the reliefs they sought from the Court below and to discountenance the arguments of the 1st Respondent which would precipitate an unjust result. He relied on the Supreme Court case of Nafiu Rabiu v.?The State (1980) 2 NCR 117, as instructive lead. He said that the case of Ladoja v.?INEC (supra) Marwa v.?Nyako (supra) and Ehirim v.?ISIEM (supra), heavily, relied upon by the 1st Respondent, were not applicable to this case.

Counsel urged us to allow the appeal, set aside the entire decision of the Court below and to resolve the questions, reliefs and declarations sought in the originating summons in Appellants’ favour, pursuant to Order 16 of the Court of Appeal Act, 2004.

The 1st Respondents’ Counsel Folasade Hofolaju (Ms) of Chief Adeniyi Akintola SRN & Co. who settled the brief, on issue one, submitted that the trial Court was

right when it found that the Appellants’ suit was an abuse of the Court process. She said that it was false for Appellants to say they were not served with the processes of the matter in FHC/ABJ/CS/483/2012, pending at Abuja Federation High Court; that not only were they on the know of the suit (which was later transferred to Owerri Federal High Court), the plaintiffs in that case were actually working in concert with the Appellants and they were duly represented in that case by Ngozi Olehi Esq, a Counsel in the team representing the Appellants in this case in this Court.

She submitted that Appellants were the 7th to 34th Respondents in the Abuja suit and on 3/12/12, when the matter came up on the cause list for the day, some of the Appellants were at the Federal High Court No.1, Owerri Imo State and were legally represented by Ngozi Olehi Esq and Obinna Nwachukwu Esq; that on 5/2/2013, some of the Appellants herein were again in that Court, legally represented by Obinna Nwachukwu Esq, holding the brief of Ngozi Olehi Esq.

?Counsel also said that the processes in the said case at the Federal High Court were served on the 1st Respondent much earlier

than those of this case; that abuse of the process occurs when it appears that a party to suit is being vexed twice over the same issue, or where there is a material multiplicity of action on the same subject matter against the same opponent on the same issue. She relied on Saraki v. Kotoye (1992) 3 NSCC 321; Okorodudu v. Okoromadu (1977) 3 SC 21; Ogunyemi v. Oloyede (2009)12 WRN 172 at 181; Yar’ Adua v. Abubakar (2009) 4 WRN 184.

Counsel further submitted that the issue and the parties in the suit of the Appellants herein can be and indeed were dealt with in Suit No FHC/ABJ/483/2012; that this suit (HOW/499/2012) and the suit No. FHC/ABJ/CS/483/2012 have one and the same effect, being about the Imo State Local Government Administration (amendment) Law, 2009 and its effect on the tenure of the Appellants.

?Counsel submitted that they had established, in the Court below, that though the two suits were filed on the same date, it was processes in PHC/ABJ/CS/483/2012 that were first served on 1st Respondent and that proceedings in that case had commenced before Appellants served their processes in this case (HOW/499/2012) on the 1st Respondent; that though

the two suits were filed the same day, the Federal High Court case came up before the suit of the Appellants and made the suit of the Appellants and abuse of the process of Court.

On the issue of paragraphs 4.0 – 4.12 of the Appellants’ brief, where of they made heavy weather of constitutional obligation with respect to interpretation jurisdiction, which the Lower Court was called upon to make, Counsel for 1st Respondent said that the interpretative jurisdiction which Appellants touted was only a smoke screen which they tried to use to shield the abuse of the process of Court; that there was nothing to interpret, other than the tenure of the Appellants which had already been interpreted and decided by this Court in the Appeal No. CA/OW/215/2011, delivered on 5/7/12, involving the Appellants (which Appellants also placed reliance on in this appeal).

Counsel referred us to relief (iv) of the 10 reliefs sought at the Court below, which was for:
“a declaration that by virtue of the provisions of Section 23(1) of the Local Government Law No. 15 of 2000 (as amended), the claimants have a guaranteed tenure of two years in office as democratically

elected chairmen commencing from the date of inauguration on 9th August 2010”

Counsel also referred us to page 73 of the Records of Appeal, where this Court, in the said CA/OW/215/2011 granted all the reliefs of the Appellants herein, especially that the Appellants have guaranteed tenure of two (2) years in office as democratically elected local government chairmen’, commencing from the date of their inauguration – 9/8/10, as prayed by the Appellants.

Counsel, said there was no further interpretation jurisdiction on the matter which Appellants might seek to invoke the issue having already been decided by appellate Court.

She relied on Section 240 of the Constitution, to say that the High Court is bound by the decision of the Court of Appeal. She also relied on the case of Osakue v. Fed. College of Education (Technical) Asaba & 2 Ors (2010) 30 WRN 43; Pharamtex Ind. Proj. Ltd v. Trade Mark (2009) 4 WRN 65; Ojo v. INEC (2008) 42 WRN 39.

?On issue 2, Counsel Submitted that this case borders on the extension or elongation of the tenure of the Appellants as Local Government Chairmen of the various Councils in Imo State; that they had tried,

surreptitiously, to seek this at the Lower Court and failed. She submitted that when this Court gave judgment on 5/7/12, in respect of Appeal No.CA/OW/215/2011, the 1st Respondent herein directed that Appellants herein return to their offices, in his line with that decision; that the 1st Respondent did not frustrate the return of the Appellants to office; that Appellants indeed returned to office, ably supported by the Federal might, who provided security inform of Policemen from the seat of Government in Abuja, to take over the Local Government Areas, even when the 1st Respondent had already complied with the decision of the Court. Counsel said by paragraph 4.21 of their Brief, Appellants were understood to be saying that, having been out of their offices for a while, before they were restore by the order of this Court, they are entitled to go back to the office and spend some more time to cover the period of time they were out of the office. She submitted that the law does not make provisions for this.

?In respect of paragraph 4.22 to 4.44 of the Appellants’ Brief, on the principles of interpretation of provisions of statute, Counsel submitted that no

matter how eloquent the Appellant may sound in that argument, the law is that, where words of the statute are clear and unambiguous, then, those words must be given their ordinary and grammatical meaning. She relied on Ejuetami v. Olaiya (2002) 9 WRN 7 at 195; Olatoni Ind. Ltd v. Nig. Dev. Bank Ltd (2009) 39 WRN 1 at 32; Kabirikim v. Emefor (2009) 41 WRN 1 at 38; Marwa v. Nyako (2012) All FWLR (Pt.622) 1621; James v. GP (2005) 4 WRN 78 at 97 Alamieyeseigha v. FRN (2006) 34 WRN 490.

Based on the above, Counsel said the provisions of the Imo State Local Government Law, 2000 (as amended), which pegged the office of an elected Local Government Chairman at two (2) years are very clear, showing that Appellants who took their Oath of office on 9/810 had their tenure determination by effluxion of time on 8/8/12.

Counsel argued that though Appellants kept saying that their case was not one for elongation of tenure, that their arguments boil down to that, that they are supposed to be in their office longer than 8/8/12. Counsel relied on the case of Ladoja v. INEC (2007) 14 WRN 1 to reject any such suggestion – elongation of tenure. She also relied on Ehirim v.

ISIEC (unreported judgment the Supreme Court in SC/139/2008, delivered on 13/4/12)

Counsel said by the operative law, the Appellants were entitled to two years tenure, which they have served and so cannot come back to Court to pray to be allowed 3 year tenure, under the Imo State Local Government Law, 2000, which was repealed in June, 2010 before their elections and swearing-in into offices as Chairmen of the Councils; she argued that Appellants cannot be allowed to approbate and reprobate at the same time on the issue, and she relied on Suberu v.?State (2010) 31 WRN 1 at 26; Osuji v.?Ekeocha (2009) 52 WRN 1 at 28.

Counsel urged us to resist the urge not to apply the decision in Ladoja v.?INEC (Supra), Vincent v.?Akujobi (Supra) and Ehirim v.?ISIEC (Supra), which she claimed Appellants’ Counsel suggested, surreptitiously. She urged us to resolve the issues against Appellants and dismiss the appeal.

?The 2nd Respondent’s Counsel, S.E. Ibechem Esq, had also argued in line with Counsel for the 1st Respondent. It is, actually, an aberration, in my view, that 1st and 2nd Respondents were represented in this appeal by separate Counsel, who filed separate

briefs. When one considers the offices of the two government officials – Governor of Imo State and Attorney General of Imo State, sued in their official names (not personal names), wherein the 2nd Respondent is known as the Chief Law officer of the State, to represent State and the 1st Respondent, in all legal matters and in Court, then the confusion and charade of separate representations stand to be deprecated and condemned. See the case of Governor of Imo State and Anor v. Hon. Chief Athanasius Uche Ogoh & Ors: CA/OW/386/2014, delivered on 13/11/15, wherein we said, on pages 24 to 25 thereof:
“The Government of Imo State is a statutory person, who can only act or operate through human personalities. The Governor of Imo State is the alter ego (second self or bodily representation) of the Imo State Government, and the Attorney General of the State is the Chief Law officer of the State, enjoined by law to represent the interests and obligations of the Government of Imo State in all legal/Judicial transactions, and their roles are constitutional. See Sections 176(2) and 195(1) of the 1999 Constitution of Nigeria. There are several judicial

interpretations, to the effect that Attorney General of a State is a defendant or a nominal defendant in all civil actions which the Governor of the State is sued or involved and the act/omission of the Governor of the State and/or any official of the State, when under litigation, the disclosure of the Attorney General of the State suffices to join the entire machinery of the Government of the State, and the Government is committed.”

It is usual and normal for the Attorney General or Governor of a State to farm out a State brief to a private legal practitioner(s) to conduct the case for the government. What appears untoward and unusual in this appeal, is having the Governor of the State, not represented by the Attorney General of the State, but by a private legal practitioner, while the Attorney General is represented, separately, by a lawyer in the chambers of the Attorney General! It would have been more tidy, in my view, for the private legal practitioner to represent both the Governor of the State and the Attorney General or lead the State Counsel and file a common brief. The above is only an observation.

?Mr Ibechem, in the 2nd Respondents’

brief, had also added that Barr. C.O.C. Akaolisa who was one of the plaintiffs in the suit at the Federal High Court (FHC/ABJ/CS/483/2012) had described himself in that suit as the legal adviser of the PDP, the 2nd Plaintiff in that suit, and that the PDP was the person “who sponsored the Appellants herein to the election that gave rise to the two suits; that it was most unlikely that the legal adviser of the Appellants’ party and their party would take out the Abuja suit without the knowledge and active support of the Appellants.

He urged us to discountenance the argument that Appellants were not served with the process in the Federal High Court case.
He too urged us to dismiss the appeal.

The 4th Respondent’s Counsel Eddy Ndubuisi Esq, on whether the trial Court was right to hold that Appellants’ case bordered on elongation of tenure of office of the Appellants, answered in the affirmative. He said that in Appellants’ argument of their issue 2, on elongation, Appellants’ Counsel made very elaborate and painstaking presentations on the principles governing interpretation of statutes, especially as it relates to discovering the intention of the

legislature; that with that mind set Counsel for the Appellants visited Section 7(1) of the 1999 Constitution and urged us to hold that it will amount to a defeat of the intention of the legislature if the period of one year, 6th June, 2011 and 5th July 2012, when the Appellants were thrown out from office, is not considered and added up from August 8, 2012 as part of Appellants’ tenure. (See relief (b) of the Appellants in this suit – page 4 of the Records).

Counsel submitted that the research made by Appellants’ Counsel in the Appellants’ brief, amounted to mere academic exercise which cannot invoke the adjudicative powers of this Court. He relied on Odu v. Etim Duke & Ors (2) (2000) 33 WRN 12 at 20; Fidelity Bank Plc v. Mrs Comfort Ogini (2013) 2 NWLR (Pt.1337) 182 at 187.

?Counsel submitted that it was very curious for Appellants, who took their oaths of office on 9/8/10, under the Local Government Administration Law of Imo State No.15 of 2000 (as amended), which pegged their tenure for 2 years, to now turn round to canvass that they are no longer bound by that same law; that it will be grossly inequitable for the Appellants who filed suit No.

HOW/512/2011, which culminated in Appeal No.CA/OW/215/2011, seeking reliefs under the Law No. 15 of 2000 (as amended) and which reliefs were granted, based on the same law, to which they rejoiced and were assuaged, to now turn round to query the applicability or otherwise of the same law, before the same Court, especially as Appellant did not appeal the decision in CA/OW/215/2011, based on the same law, before making the ‘U’ turn to query the applicability of the same law. Counsel also relied on Ladoja v. INEC (2007) 40 WRN 1 at 43 to oppose the call for elongation of tenure. He also relied on Hon. Bimbo Adepoju & Ors v. Olona Yinka & Ors (2012) 49 NSCQR 761.

4th Respondent’s issue 2, on jurisdiction, appears to be a stranger to this appeal as it is independent of the grounds of appeal and the two issues by the Appellants. We have held, several times, that the Respondent has no room to formulate issue(s) for determination of appeal outside the grounds of appeal raised by the Appellant, except he had cross-appealed or raised a Respondent’s Notice on the issue so raised. See the case of Agbarakwe v. University Press Plc (2015) 6 CAR 188, at 201, where

we held:
“There is nothing in law that bars a Respondent who has not cross appealed against a judgment, from formulating issues for determination. But such issues, formulated, must derive from or relate to the grounds of appeal?” Ojegbe v. Omatore (1999) 6 NWLR (pt.608) 591, Bawa v. Aliyu (2015) 3 NWLR (pt.447) 523.
I therefore strike out 4th Respondent’s issue 2, for incompetence. See Agbarakwe v. University Press Plc (Supra).

On their issue 3, which is equivalent of Appellants’ issue, 1, 4th Respondent’s Counsel also agreed with the 1st and 2nd Respondents, that the Appellants’ suit was an abuse of the process of Court, in view of the pendency of the matter at the Federal High Court in FHC/ABJ/CS/483/2012, (where-of the Respondents in this Appeal) and Appellants in the case at the State High Court (HOW/499/2012) were defendants); that the Respondents, together with the Appellants, are parties in the two cases.

Counsel also alluded to the fact that Barr. C.O.C Akaolisa, who was the 1st Claimant in the Federal High Court case, was the legal adviser of the Peoples Democratic Party (2nd Claimant) in that case and had stated that the

Appellants in this case were members of the PDP and had been elected under the auspices and platform of the said party; and that the party had sponsored them (Appellants) at the election. See page 358 (reliefs 1 and 2 of the claim in FHC/ABJ/CS/483/2012) of the Records of Appeal.

Counsel said the reliefs in the Federal High Court case are the same with the reliefs in the suit on appeal, bordering on the same election of and the Imo State Local Government Administration Law No. 15 of 2000 (as amended), the issue of tenure of the Appellants to remain in office, injunctive reliefs against the Respondents etc. He submitted that it was clear that the issues in HOW/499/2012 and FHC/ABJ/CS/483/2012 are the same, both in issue and content/intent, and the parties are the same; that the sole motive of taking out the two suits was to irritate and annoy the Respondents, and it amounted to multiplicity of actions on the same subject matter. He said there could be no greater abuse of the process of Court; that the trial Judge was right in his, decision. He relied on the case of Saraki v.?Kotoye (1992) 3 NSCC 331; Okorodudu v.?Okoromadu (1977)?3 SC 21; Okafor v.?AG?Anambra

State (1991) 6 NWLR (pt.200) 659.

He urged us to resolve the issue against Appellants and dismiss the appeal.

RESOLUTION OF THE ISSUES
Appellants’ suit in HOW/499/2012 had posed the following 2 questions and sought the following reliefs:
1. Whether, having regard to Section 7(1) of the 1999 Constitution (as amended) and Section 23(1) of the Local Government Administration Law No. 15 of 2000, as well as the Notice of Local Government Elections dated 25 February 2010 and the Guidelines thereof and issued by the 4th Defendant and made available to all aspirants including the Claimants and political parties, the purported Local Government Administration (Amendment Law) No. 15 of 2009 which is retroactive is applicable to the Claimants’ tenure as Chairmen of the Local Government Councils in Imo State.
2. Whether having regard to Section 7(1) of the 1999 Constitution (as amended) and the judgment of the Owerri Division of the Court of Appeal on the 5th day of July 2012 in Appeal Number CA/OW/215/2011 which declared the 1st Defendant’s dissolution of the Local Government Councils on the 6th day of June 2011 as unconstitutional, null and void,

the period of 13 months for which the Claimants were illegally removed from office should form part of the Claimants’ statutory tenure as duly elected Chairmen of the 27 local Government Councils in Imo State.

Wherefore the Claimants claim against the Defendants jointly and severally as follows:
1. A Declaration that pursuant to Section 7(1) of the 1999 Constitution (as amended) and Section 23(1) of the Local Government Administration Law No 15 of 2000 as well as the Notice of Local Government Elections the Guidelines thereof dated 25 February 2010 by the 4th Defendant and made available to all aspirants including the Claimants the purported Local Government Administration (Amendment Law) Law No 15 of 2009 which is retroactive cannot apply to the tenure of the Claimants as Chairmen of the 27 Local Government Councils in Imo State.
2. A Declaration that by the combined effect of Section 7(1) of the 1999 Constitution (as amended) and the judgment of the Owerri Division of the Court of Appeal on 5th day of July in Appeal number CA/OW/215/2011 which declared as unconstitutional the dissolution of the 27 Local Government Councils of Imo State the

period from June 6, 2011 to July 5, 2012 for which the Claimants were illegally removed from office does not form part of the Claimants’ statutory tenure as duly elected Chairmen of the 27 Local Government Councils in Imo State.
3. A Declaration that the guaranteed tenure of the Claimants having not expired, the 4th Defendant lacks the statutory power to conduct Local Government elections in Imo State to replace the Claimants.
4. An Order of perpetual injunction restraining the 1st Defendant by himself, his servants, agent, privies or whosoever from interfering with the right and privileges of the Claimants as democratically elected Chairmen of the 27 Local Government Councils of Imo State under the guise that their tenure would expire on 8 August 2012.
5. An Order of perpetual injunction restraining the 1st, 2nd, 3rd and 4th Defendants by themselves, their agents, privies, servants or whosoever, from treating or purporting to treat the tenure of the Claimants as coming to an end on or about 8 August 2012 or from interfering in any manner whatsoever with the statutory duties of the Claimants as democratically elected Chairmen of the 27 Local

Government Councils in Imo State.
6. An Order of perpetual injunction restraining the 4th Defendant from organizing any Local Government Council Election in Imo State to replace the Claimants as Chairmen of the 27 Local Government Councils in Imo State.

There is enough evidence that, apart from this case, a Political Party (Peoples Democratic Party) and the legal adviser of the Party earlier filed the suit at the Federal High Court in Abuja (FHC ABJ/CS/483/2012) wherein Appellants agreed to be co-Respondents. In both cases, the Respondents in this appeal were Respondents. The reliefs sought in the Abuja suit (which was later transferred to Federal High Court,Owerri) were as follows:
See page 271 -273 of the Records of appeal.
1. Name and description of the applications
(a) The 1st Applicant is a registered voter in Orsu local government Area of Imo State who voted in the local government election in August 2010 that produced the chairmen and councilors of Orsu local government and the legal adviser of the People Democratic Party Imo State.
(b) The Peoples Democratic Party is a registered political Party in Nigeria that sponsored

the chairmanship and councillorship candidates that won the elections of August 2010.
(2) Relief sought by the applicants
(a) A declaration that the elected local?Government Council Chairmen and Councillors in Imo State are entitled to remain in office for a period not less than three years (3 years) as provided for by the Imo State Local Government Administration law No 15 of 2000 as amended and as guaranteed by the express provision of Section 7 of the 1999 Constitution of the Federal Republic of Nigeria.
(b) A declaration that the period of one year (6th June 2011 – 5th July 2012) spent by the elected Local Government Council Chairman and Councillors outside their offices by the unlawful act of the Governor of Imo State does not count as period spent in office by virtue of the mandate of the people of Imo State given to the said chairman and councillors and guaranteed by the provisions of Section 7 of the 1999 Constitution of the Federal Republic of Nigeria.
(c) An order of mandamus compelling the 27 local government chairman and councillors in the state to remain in office (performing their duties) and completing their full tenure of

(3 years) which will expire on the 8th August 2014.
(d) An order of injunction prohibiting the governor of Imo State and the House of Assembly from interfering with the exercise of the functions of office of the 27 council chairmen and councillors in Imo State until the expiration of their full tenure of three(3) years ending on the 8th day of August 2014.
(e) An order of injunction restraining the Imo State Independent Electoral Commission (ISIEC) from the issuance of any notice of election and or proceeding with the conduct of any local government election until the full expiration of the 3 years tenure of office.
(f) An order restraining the Governor of Imo State by himself of through his servants agents and cronies from forcing the 7th – 33rd respondents to vacate their offices on the 8th of August 2012 or on any other date until the expiration of their 3 years tenure ending on the 8th August 2014.
(g) An order restraining the Imo State House of Assembly from passing any resolution or law dissolving the local government councils in Imo State and or upholding any act or directive of the Governor of Imo State in respect of or targeted at

vitiating the judgment and orders of the Court of Appeal delivered in suit no CA/OW/215/2011 on the 5th of July 2012.
(h) An order mandating the 1st and 2nd respondents to continue to enforce the orders of the Court of Appeal and any further orders or directives of the Court in the matter of the dispute between the local government councils in Imo State and the Government of Imo State.
3. GROUNDS FOR THE APPLICATION
1. Local Government Councils are created by virtue of the provision of Section 7 and Schedule of the 1999 Constitution.
2. Pursuant to the said Constitution, the Imo State House of Assembly law No. 15 of 2000 (as amended) established the council with a tenure of three years.
3. The Imo State Independent Electoral Commission has power to conduct election into the offices of Chairman and Councilor only after the expiration of their tenure of three years.
4. The Chairman and Councillors of the Local Government Councils in Imo State have guaranteed by the Provisions of Section 7 of 1999 Constitution and the Imo State Local Government Administration Law No. 15 of 2000 as amended.

?On noticing what appeared to be an abuse

of the Court process by the two suits, going on, on the same issue by the same parties, the 1st Respondent filed the motion in the Suit No. HOW/499/2012 on 8/8/12 to challenge its competence (among other reliefs). The grounds for the motion (among others) were that:
“(3) This suit is an abuse of the process
(4) The Court lacks the jurisdiction to make order which will elongate the tenure of the claimants beyond the statutory period
(5) The Court cannot make an order restraining Defendants from carrying out their constitutional duties.”
See pages 308 to 309 of the Records.
Ruling on the motion, the trial court said:
“It is self evident that the questions raised in both suit are same and in the circumstance the suit before this Court is an attempt to litigate on the same issue and it is immaterial that the Claimants in this suit are defendants in the earlier suit. As stated earlier this suit is an originating summons. The nature of the remedies are consequential to the interpretation. Thus, adopting legal syllogistic reasoning include question for the interpretation is the major premise and the remedies sought constitute the minor

premise. It is therefore correct and exact to state that the result to be given to the suit in Abuja will be co-extensive with the answers to be given by this Court in the present suit if the suit is allowed to stand. It will be an affront to reason for anyone to contemplate that the Claimants herein will go to Abuja and take sides with the defendants herein.
For this reason I consider this suit an abuse of process. Earlier questions were posed on the effect of the election Notice of Election and taking Oath of office by Claimants. As stated somewhere else the question was stayed and in view of this should now be taken. Those questions are redundant as the present Suit is an abuse of judicial process or there is lis alibi pendens – a pending Suit elsewhere and in this case Abuja in FHC/ABJ/432/2012 (sic) over the same issue. Another vice plaguing the case of Claimants is the issue of elongation of tenure. It is agreed that as far as this is concerned the extant law pegged it at 2 years. Can I now extend it? Are Courts Legislators? Law (sic) afraid No. In the case of Ladoja (supra) cited by both parties, the Supreme Court in its reasoned Judgment held

amongst others?.. The Constitution of the Federal Republic of Nigeria 1999 did not grant the Courts the power to grant an extension of tenure to a Governor who has been improperly impeached. To hold otherwise would amount to reading into the Constitution provisions that are not there.”
“.. much as one may be in sympathy with the Plaintiff/Appellants’ cause, it seems to me that to accede to his request will occasion much violence to the Constitution?.. This Court can interpret constitution but it cannot rewrite it.” (See page 586 – 587 of the Records of Appeal).

Was the trial Court right to hold that the suit was an abuse of the Court process and that it sought to elongate the tenure of the Appellants in office?

?On the first issue – Abuse of the Court process – authorities are replete, that filing multiple actions in different Courts or in the same Court, over the same subject matter or issue, involving the same parties, is offensive. Also taking out an action for the purpose of irritating, vexing or annoying an opponent and/or subjecting the machinery of justice administration to ridicule and scandal, by so doing,

all amount to abuse of the judicial process or abuse of the process of Court. See the case of Tailor & Ors v. Balogun & Ors (2012) LPELR – 19673 (CA); (2013) 10 WRN 137, and the case of Dingoli v. Bara’u (2012) All FWLR (pt.609) 1156 at 1175 where this Court said:
“Abuse of process of Court is a term generally applied to a proceeding which is wanting in bonafide and is frivolous, vexations or oppressive. It can also mean abuse of legal procedures or improper use of judicial process. Adefulu v. Secretary, Ikene Local Government (2002) 42 WRN 68; African Re-insurance Corp. v. J.D.P. Construction Nig. Ltd (2003) FWLR (pt.176) 667.
In the case of Saraki v. Kotoye (1992) 11 – 12 SCNJ (which was heavily relied upon by the parties in this case) the Supreme Court said:
“The abuse consists in the intention, purpose and aim of the person exercising the right of issue of judicial process to harass, irritate and annoy the adversary, and interfere with administration of justice, such as instituting different actions between the same parties, simultaneously, in different Courts even though on different grounds”
Also in the case of Ogoejeofo v.

Ogoejeofo (2006) 3 NWLR (pt. 966) 205 it was held that the circumstances that will give rise to abuse of Court process include:
“(a) Instituting multiplicity of actions on the same subject matter against the same opponent on the same issue(s) or multiplicity of actions on the same matter;
(b) Instituting different actions between the same parties, simultaneously, in different Courts, even though on different grounds;
(c) Where two similar processes are used in respect of the exercise of the same right.
(d) Where an application for adjournment is sought by a party to an action to bring an application to Court for leave to raise issues of facts already decided by the Court.
(e) Where there is no law supporting a Court process or where it is premised on frivolity or recklessness”
The above does not, however, exhaust the circumstances in which abuse of the Court process can be inferred, as the definition and application of this procedural mischief, appears to be open-ended and depends on each given circumstance.
In the case of Ajonuma and Ors v. Nwosu & Ors (2014) LPELR – 24015 (CA) it was held that actions or motions filed

for sole purpose of frustrating or delaying the trial of substantive case at the Lower Court is an affront to the principles of sound adjudication and border on abuse of the Court process.

Appellants in this case were members of the Peoples Democratic Party (PDP) and were privy to the action filed by their said party on 3/8/2012, jointly with the party’s legal adviser, as plaintiffs. But in their legal strategy, the said Plaintiffs decided to join the Appellants in this case as Defendants in the said suit (FHC/ABJ/CS/483/2012), together with the Respondents in this Appeal. In the reliefs by the plaintiffs in the Federal High Court case, they were bold to sate, as follows (as earlier reproduced in this judgment):
1. (a) The Peoples Democratic Party is a registered Political Party in Nigeria that sponsored the chairmanship and councillorship candidates that won the elections of August 2010.
2. (a) A declaration that the elected Local Government Chairmen and Councillors in Imo State are less than three years as provided for by the Imo Local Government Administration Law No. 15 of 2000 as amended and as guaranteed by the express provision of Section

7 of the 1999 Constitution of the Federal Republic of Nigeria.
(b) A declaration that the period of one years (6th June 2011 – 5th July 2012) spent by the elected local government Council chairmen and Councillors outside their offices by the unlawful act of the Governor of Imo State does not count as period spent in office by virtue of the mandate of the people of Imo State to the said chairmen and Councillors and guaranteed by the provisions of Section 7 of the 1999 Constitution?”

It can be seen, from the above, that the Plaintiffs in that suit (FHC/ABJ/CS/483/2012) were, in fact, spearheading Appellants’ cause (though with Appellants in the defence) in this case. They were actually fighting against the Attorney General of the Federation, Attorney General of Imo State, Imo State House of Assembly, Imo State Independent Electoral Commission, Governor of Imo State, Commissioner for Local Government Affairs of Imo State (who apart from the A.G. Federation) are also Respondents in Appellants’ suit No. HOW/499/2012, filed by Appellants on the same 3/8/12.

?Why did Appellants file, in Imo State High Court, another suit seeking the same reliefs

against the same persons listed as Respondents in the Federal High Court suit, and withdrawing themselves from defence in that suit, to claimants in the State High Court suit?

I think the procedural mischief called, Abuse of the Court process, was clearly demonstrated in the later suit and the learned trial Court was right to dismiss the later suit, in the circumstances, as Appellants still had the opportunity to pursue their reliefs in the Federal High Court suit, which was interwoven with that of their sponsors (plaintiffs) in the said suit.

Appellants had complained that the trial Court did not take evidence to determine which of the two cases was filed first in time on the said 3/8/12, after it was established that the Federal High Court matter was filed at about 1.40pm. I do not think that issue really mattered, as evidence showed the processes in the Federal High Court were those first served on the Respondents, and that parties first appeared in Court, in respect of that case. It should also be appreciated that the motion was taken in the State High Court matter, seeking the striking out of that suit (HOW/499/2012) for being abuse of the

process. Of course, the trial Court could only have had power to deal with the case before him, by striking it out or dismissing it, for being abuse of the process. Thus, even if the Federal High Court matter was later in time, the trial Judge in HOW/499/2012, who heard the application, could not have exercised power over the Federal High Court Suit, especially as that was not the one prayed to be struck out or dismissed.

Appellants’ suit was therefore a vexatious and a mischievous duplication of the suit already in the Federal High Court in suit No.FHC/ABJ/CS/483/2012, meant to confuse the Courts and expose the Administration of justice to ridicule and scandal. I agree with the Court below that it was an abuse of the Court process.

Was the Appellants’ suit a ploy to seek elongation of the tenure of the Appellants in Office?

?In dealing with this issue, one has to be careful not to delve into the substance or the merits of the substantive suit, considering 2nd question for determination posed by Appellants in their originating summons, as well as the 2nd 3rd and 4th Reliefs sought by the Appellants on pages 3 and 4 of the Records of Appeal. Of

course, the above question and reliefs are in line with the 2nd and 3rd Reliefs in the Federal High Court suit. See Chukwuemeka v. Agu & Ors (2015) LPELR – 25578 (CA); Falomo v. Banigbe & Ors (1998) LPELR – 1237 (SC) (1998) 7 NWLR (pt.559) 679; Kwazo v. Railway Property Co. Ltd & Ors (2014) LPELR – 23737 (CA):
“It true that a Judge is barred from delving into the substance of the main case, while determining an interlocutory application, but that does not mean he cannot consider the document presented to it for determination by the applicant for the interlocutory order, if the document is relevant to the interlocutory application.”

The 1st Respondent’s motion on page 308 – 309 of the Record had urged the trial Court to strike out Appellants’ suit because the trial Court lacked jurisdiction to make the order sought to elongate the tenure of the Appellants in office beyond the statutory period.

?In the first place, I think Appellants were not honest in their submissions in this appeal, on their issue 2, when they, strenuously, tried to deny the obvious, that they were seeking elongation of tenure, or as they put it in their reliefs in

the two Courts, that the period from June 6, 2011 to July 5, 2012, for which the claimants were illegally removed from office does not form part of the claimants’ statutory tenure as duly elected chairmen of the 27 Local Government Councils in Imo State that the guaranteed period (tenure) of Claimants having not expired, the 4th Defendant lacked statutory Power to conduct Local Government elections in Imo State to replace the Appellants. Appellants had earlier questioned:
“Whether having regard to Section 7(1) of the 1999 Constitution (as amended) and the judgment of the Owerri Division of the Court No.CA/OW/215/2011 which declared the 1st defendant’s dissolution of the Local Government Councils on 6th day of June 2011 as unconstitutional, null and void, the period of 13 months for which the claimants were illegally removed from office should not form part of the Claimants! statutory tenure as duly elected chairmen of the 27 Local Government Council in Imo State”

?That, obviously, was asking for extra time to come back to office, after the effluxion of their tenure on 8/8/12, to serve out the 13 months, which Appellants were deprived of, owing to the

unlawful truncation of their scheduled term on 6/6/11 by the 1st Respondent (the Governor of Imo State). Meanwhile, the decision of this Court in the Appeal No.CA/OW/215/2011, relied upon by the Appellants, had resolved for the Appellants, that they were entitled to be in office for 2 years, from the date of their election (9/8/10) pursuant to Section 23(1) of the Local Government Administration Law No. 15 of 2000 (as amended) and by Section 7(1) of the 1999 Constitution of Nigeria, guaranteeing the fixed tenure as democratically elected chairmen of the Local Government Councils; that the 1st Respondent had no power/competence to remove the Appellants and replace them with transition committees. See page 71 to 73 of the Records of Appeal.

Appellants had pleaded in that case (HOW/312/2011) filed on 10/6/11, that “by virtue of provisions of Section 23(1) of the Local Government Law No. 15, of 2000 (as amended) the claimants have a guaranteed tenure of 2 years in office as democratical/elected chairmen, commencing from the date of inauguration on 9th August, 2010.” See page 33 of the Records of Appeal.

?It, therefore, appeared an act of bad faith or

mischief (still bordering on abuse of the process), for Appellants to have filed another suit or suits, claiming right to 3 years tenure, commencing on 9/8/10, after they had expressly acknowledged and admitted that the Law by the same Section 23(1) of the Local Government Administration Law No.15 of 2000 (as amended) had pegged their tenure in office at 2 years, and this Court affirmed that in CA/OW/215/2011.

I agree with the learned trial Judge in this case that what the Appellants asked the Court to do amounted to seeking elongation of their tenure, by asking same, through the back door, to be allowed to serve the time (13 months) they were wrongfully kept away from the office.
In the case of Akano v. Nwabuisi & Ors (2015) 6 CAR 22, where Appellant had been wrongly removed from office and later restored by the Court, after he had lost substantial part of his statutory period of service to his Club, it was held by this Court, relying on the case of Ladoja v. INEC (2007) 12 NWLR (pt.1047) 115:
“Appellant cannot seek extension of time, indirectly, to complete his tenure, to compensate for the period he lost, when out of office, due to the

wrongful suspension of his membership of the Club. I think the case of Ladoja v. INEC? applies here. Ladoja was, wrongfully, removed from office as Governor of Oyo State by impeachment. When the impeachment was reversed by the Court and he was restored to office, he had already lost 11 months of his 4 year term as Governor. He went back to Court for an order to be allowed to finish his 4 year term. The Supreme Court, in a full panel of 7 Justices, refused, as that would have amounted to elongation of his 4 year term, which was static and fixed.”
In that case of Ladoja v. INEC (Supra) the Supreme Court said:
“Much as one may be in sympathy with the plaintiff/Appellants cause, it seems to me that to accede to his request will occasion much violence to the Constitution. This Court can interprete the Constitution, but it cannot re-write it. In awareness of the possibility that an occurrence may prevent a Government from being sworn in on the same date as his counter parts in the country, Section 180(2) states:
That tenure be computed from the date the oath of allegiance and oath of office is taken There is no similar provision to protect a

Governor improperly impeached.
See also Ehirim v. ISIEC (2008) 15 NWLR (pt.1111) 443; Marwa v. Nyako (2012) LPELR – 7837 (SC) (2012) 6 NWLR (pt.1296) 199, on fixed tenure and when it starts to count.

I am afraid, that same situation applies on this appeal, where it is agreed that the tenure of office of the Appellants was violently breached by the 1st Respondent’s wrongful act of 6/6/12.

But they had a reprieve by the decision of this Court in CA/OW.215/2012, which restored them to office to serve their term. If subsequent acts of the 1st Respondent prevented them from getting access to their offices to complete their tenure, that would only amount to contempt and, perhaps, to claims for damages. Certainly, it cannot make room for another action to elongate the tenure of Appellants, indirectly, or claim that the tenure should have been 3 years instead of 2 years earlier asserted and affirmed.

In that case of Akano v. Nwabuisi (supra) Appellant had been elected, sometime in 2007 as the Chairman of his Club, for a two year teem, as per the Constitution of the Club. His tenure was to expire in 2009, but in July 2008 he was suspended as a member

of the Club but he challenged the suspension in Court and the Court restored his membership of the Club in December, 2010.

He held onto power and would not call for election of a new Executive Council of the Club. On 12/9/2011, members of the Club had an extra-ordinary general meeting, which dissolved, his Executive Committee and elected a new one. Appellant kicked, claiming right to be in office to account for the period he was suspended and out of office; that it was the duty of his Executive Committee to call for and arrange for election of another Executive Committee to replace him. Of course, it was held that his tenure had ended in 2009, by effluxion of time as Per the Club’s Constitution and he could not elongate his tenure against the wish of the majority members of the club.

Of course, the Respondents have asserted in this case that Appellants were allowed to complete their 2 years term following the judgment of this Court, in CA/OW/215/2011. We cannot go into all that debate now, since the substantive case is yet to be heard, in the Federal High Court, with the dismissal of HOW/499/2012.

?I should, however comment on the issue of

whether or not the intention of the law makers have been made clear or known as to the right of the elected officers of the Local Government system to enjoy guaranteed term or fixed tenures.

Constitutional Provisions of Section 7(1) of the Constitution to install contrivance, in the name of ‘Transitional Committee’ or “Caretaker Committee”, which has been condemned by the superior Courts. See appeal No.CA/OW/215/2011,delivered on 5/7/12. See also the case of Dogari v. AG of Taraba State (2011) All FWLR (PT.603) 1926, holding 2 and 3, where this Court said:
“By the provisions of Sections 7 and 8 of the Constitution of the Federal Republic of Nigeria, 1999, the system of democratically elected Local Government Councils is under the constitution guaranteed. Accordingly, the Government of each State, shall subject to the Constitution, ensure their existence under a law which provides for the establishment, structure, composition, finance and functions of such councils. Although, the word dissolution is not in the Section 7(1) of the Constitution, the House of Assembly which has powers to make laws to regulate the affairs of a Local Government Council, can make a law for the dissolution of an erring Local Government Council and for bye election to prevent chaos and disorder. Guaranteeing the system of Local Government by democratically elected

Local Government Council under the Constitution means that the Local Government Council must be democratically elected one and it is in order, if a Local Government Council is dissolved and a bye election is ordered. It will be otherwise, if the council is dissolved and a caretaker committee is appointed in its place. In the instant case, where the defendants amended the applicable law to the Local Government Council to enable the Governor dissolve the council and replace it with a caretaker’s committee, the trial Court erred by not declaring the law inconsistent with the Constitution. (Akpan v. Umah (2002) FWLR (Pt.110) 1820, (2002) 7 NWLR (Pt.767) 701; Akpan v. Attorney General, Cross River State (1982) 2 FNR 177; Attorney General, Plateau State v. Guyol (2007) 16 NWLR (Pt.1059) 57 referred to (Pp.1974 – 1975, paras. G – D).
See also Adamawa State House Assembly v. Tijjani (2012) All FWRL (Pt.615) 330 at 377, where it was held:
“I believe that Section 7(1) of the Constitution expects the State Assembly to invoke and establish the requisite democratic culture/atmosphere which they (State Assembly) enjoy in the Constitution, to operate in the Local

Government system as envisaged in Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999.”

The above observation, not-withstanding, I hold that the Lower Court was right, in its findings and conclusion, that Appellants’ suit was an abuse of the process, as well as attempt to elongate their tenure of 2 years, which expired by effluxion of time on 8/8/2012.

I resolve the issues against the Appellants and dismiss the appeal.

Parties shall bear their respective costs.

IGNATIUS IGWE AGUBE, J.C.A.: I have read the very illuminating and exhaustive judgment of my learned brother I. G. MBABA, JCA and I am in total agreement with his reason and conclusion that the Appeal is unmeritorious as the Appellants’ claim in the Lower Court was an abuse of Court process seeking to elongate their truncated tenure of office. Accordingly, the Appeal is dismissed. I abide by the order as costs.

?FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of this judgment just delivered by my learned brother, ITA GEORGE MBABA, JCA and I am in agreement with his reasoning and conclusions reached in dismissing this

Appeal. The Appellants could not have maintained the suit No.HOW/499/2012 and another one at the Federal High Court in Suit No. FHA/ABJ/CS/483/2012 the way they did and thought they could get away with it in such un-pardonable circumstance which smacks of a clear abuse of process.

As my learned brother had observed, the categories of what amounts to abuse of process are 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 relief. A court of law frowns at such multiplicity and once the court is satisfied that any proceeding before it is an abuse of process, it has the power and indeed the duty to dismiss it.
The court being an architect of its own integrity and dignity must be ready and willing to wield the proverbial “big stick” if that is the only way it can protect its processes from being abused.

?I too cannot in the circumstances fail to agree that the Appellants’ suit at the Lower Court was indeed vexatious and a mischievous duplication of the suit already in the Federal High Court in Suit No: FHC/ABJ/CS/483/2012. Consequently, the

Appeal is dismissed. There shall be no orders as to costs.

Appearances
NGOZI OLEHI ESQ For Appellants

PRINCESS F. AOFOLAJU For 1st Respondent

S. E. IBEACHEME ESQ For 2nd Respondent

EDDU NDUBUISI ESQ For 4th Respondent

Appearances

Ngozi Olehi EsqFor Appellant

AND

1st Respondent:
Princess F. Aofolaju

2nd Respondent:
S. E. Ibeacheme Esq

3rd Respondent:

4th Respondent:
Eddu Ndubuisi EsqFor Respondent

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