CHIEF VICTOR UMEH & ANOR V PROF. MAURICE IWU (CHAIRMAN INEC) & 3 ORS-2008

CHIEF VICTOR UMEH & ANOR V PROF. MAURICE IWU (CHAIRMAN INEC) & 3 ORS

(2008) LCN/3602(SC)

In the Supreme Court of Nigeria

Friday, February 29, 2008


Case Number: SC. 60/2007

 

JUSTICES:

ALOYSIUS IYORGYER KASTINA-ALU JUSTICE, SUPREME COURT

GEORGE ADESOLA OGUNTADE, JUSTICE ,SUPREME COURT

WALTER SAMUEL NKANU ONNOGHEN JUSTICE, SUPREME COURT

IBRAHIM TANKO MUHAMMAD, JUSTICE, SUPREME COURT

C.M. CHUKWUMA-ENEH, JSC (Lead Judgment) JUSTICE, SUPREME COURT

BETWEEN

APPELLANTS

1. CHIEF VICTOR UMEH

2.ALH. SANI SHINKAFI

AND

RESPONDENTS

1. PROF. MAURICE IWU (CHAIRMAN INEC)

2.INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

3.CHIEF CHEKWAS OKORIE4.ALL PROGRESSIVES GRAND ALLIANCE (APGA)

RATIO

“Whether this suit which is meant to have the same impact as the earlier suit No. FCT/FIC/CV/278/2005 on the leadership of the 4th respondent constitutes an abuse of process.”

Therefore, to sustain a charge of abuse of process as in the instant suit there must coexist inter alia

(1) a multiplicity of suits

(2) between the same opponents and

(3) on the same subject matter; and

(4) on the same issues. It is against the backdrop of these conditions that one has on the issue of abuse of process in the instant matter to scrutinize the aforesaid suits – No FCT/HC/CS/278/2005:

All Progressives Grand Alliance & 3 Ors. v. Chief Victor Umeh & 13 Ors. and Suit No. FHC/ABJ/CS/478/2005 Chief Chekwas Okorie & Anor. v. Professor Maurice Iwu & 3 Ors. Certainly the parties are not the same and it is particularly so when the appellants are no longer parties in the suit No. FCT/HC/CS/278/2005. On the question of having the same parties in both suits the Court below has observe thus:

“I have looked through the facts on printed record and circumstances of initiating the suits before the Federal Capital Territory High Court and the Federal High Court Abuja. It is apparent that the end result of the two suits are meant to have an impact on APGA but the 3rd Respondent has grievance towards those he considered to be dissident factors in the party which suit is before the Federal Capital Territory High Court as FCT/HC/CV/278/2005. The Suit No. FHC/ABJ./CS/478/2005 before the Federal High Court is against the Chairman INEC and 1NEC, the 1st and 2nd Respondents challenging their intermeddling with the affairs of the party by giving recognition to the appointment of Chief Victor C. Umeh as the Ag. National Chairman of APGA in the letter dated 28.6.2006, contrary to the Constitution of the Party, 1999 Constitution of the Federal Republic of Nigeria and the Electoral Law. I cannot identify any multiplicity of action here or Abuse of the judicial process. Parties are permitted to air their grievance at the law courts as when there is a right there must be a remedy”, (underlining for emphasis)

I agree with this brilliant finding; it has captured at once the principles on abuse of process. It cannot be faulted. If I may recall, the appellants according to the record, have been joined as 15th & 16th defendants to suit No. FCT/HC/CS/278/2005. The joinder, however, has to be revoked when the plaintiffs discontinued against them i.e. 15th & 16th defendants. Interestingly enough, the appellants have taken the issue of multiplicity of suits as an abuse of process vis-à-vis the instant suit when the appellants are no longer parties to one of the suits i.e. FCT/HC/CV/278/2005. They cannot run away from that fact to hinge their entire case on the finding that as the two suits have impact on the leadership tussle of the 4th respondent (APGA) the instant suit without more constitutes an abuse of process. It is doubtful if they can make out a case of abuse of process on these peculiar facts. But without deciding the point I have however to express the reservation on their right to initiate the instant application this time when there is a big question mark hanging on it competence.

As the application has not been challenged on this ground I say no more on it except to wait for an opportunity when Counsel’s address is drawn to such an issue.

I now go on to demonstrate that moreso on the merits the charge of abuse of process here cannot stand. On the question of the same subject matter in both aforesaid suits – the instant suit No.FHC/ABJ/CS/478/2005 as per the record has been instituted to challenge the 1st and 2nd defendants/respondents on their power to attempt to confer recognition of National Chairman of Acting National chairman of the 2nd plaintiff/4th respondent to any other persons but the 1st plaintiff/3rd respondent contrary to the Party’s Constitution and an order of injunction. The suit No.FCT/HC/CV/278/2005 on the other hand is founded on a declaration that the 1st to 11th defendants are no longer members of the party and on the expulsion of the 1st and 14th defendants from the party. Again, the subject matter in either of the two suits is not the same. It is difficult to see how the charge of abuse of Court process can be made to stand on these facts; it cannot.

On whether the two Suits have raised the same issues, it goes without much debating of the point that this is not so. Based on the above careful appraisal of the two suits, the contending issues in both suits are not the same There can be no doubt therefore, that the conditions I have set out above to guide my discussion on abuse of process in this matter are non-existent in the two suits and therefore this issue has to be resolved against the appellants and in favour of the respondents. I have not found any abuse of Court process or the facts of the aforesaid two suits even though in the end they may have their roots in the tussle for leadership of the 4th respondent (i.e. APGA).

The point has to be made, all the same, that on the facts particularly or the question of the plaintiffs filing the two aforesaid suits contemporaneously there is no evidence of overreaching. Nor can the appellant be heard to complain of want of bona fides in filing both suits. The plaintiffs have showed reasonable causes of action in the two suits. I have expatiated on these above. This is not a case where the granting of the reliefs in one suit will appease in satisfaction the wrongs alleged in the other suit or where all reliefs accruing from a cause of action are being claimed in more than one action.

See: Savage v. Uwaechia (1972) 1 ANLR (Pt. 1) 251. The aforesaid two suits are founded on two separate and distinct causes of action. They have given rise to two separate and distinct reliefs as I have showed herein. I have in my discussion also showed that there is no ground contending that the disposal of any of the suits will completely dispose of the issues for determination in the other suit. And so, any pronouncement in the instant suit will have no effect whatsoever on suit No. FCT/HC/CV/278/2005. This is so even though the 15th and 16th defendants may be interested in the result of suit No. FCT/HC/CV/278/2005. Besides, even more importantly, the 3rd and 4th respondents/plaintiffs in the instant case have inspite of the joinder of 15th and 16th defendants made no claims, that is to say, have sought no reliefs against the 15th and 16th defendants in the said suit. It is my view therefore and in this regard I agree with the 3rd and 4th respondents.

C.M. CHUKWUMA-ENEH, JSC

 

C.M. CHUKWUMA-ENEH, JSC

 

Delivering the Lead Judgement

This interlocutory appeal is against the decision of the Court of Appeal Abuja Judicial Division (i.e. the Court below) delivered on 20/10/06 dismissing the appellants’ appeal to the effect that this action does not constitute an abuse of process of court; it therefore affirmed the decision of the trial court.

The appellants here i.e. the 3rd and 4th defendants at the trial court being aggrieved by the decision have appealed to this court by a Notice of Appeal dated and filed on 18/12/2006 containing two grounds of appeal.

From the beginning, at the trial court, the 3rd and 4th respondents herein as plaintiffs commenced this action as per suit No FHC/ABJ/CS/478/2005 against the 1st and 2nd respondents only (that is as defendants) seeking the following reliefs jointly and severally:

“(i) A declaration that pursuant to Article 18(i) of the constitution of the All Progressives Grand Alliance herein on record as the fourth respondent, the third respondent (first plaintiff) has, is entitled to and enjoys a constitutional guaranteed chairmanship of the Party for an initial four year term commencing from 10th January, 2003 till 10th January, 2007, which term at the time of the institution of the action is still unexpired and which is also renewable at the option of the third respondent.

(ii) A declaration that the first and second respondents as defendants at the trial court lack the competence under the Constitution of the Federal Republic of Nigeria, 1999; the Electoral Act, 2002 and the constitution of the fourth respondent to interfere in any manner whatsoever with the position of the first plaintiff herein third respondent as the National Chairman of the second plaintiff herein fourth respondent and also lacks the power to change or attempt to change the leadership of the fourth respondent which is a registered political party.

(iii)    A declaration that the provision of the Electoral Act, 2002 does not empower the defendants herein as the first and second respondents to confer recognition on any other person as the National Chairman or Acting National Chairman of the second plaintiff contrary to the provisions of the second plaintiffs constitution.

(iv)   A declaration that the defendants are not entitled to ignore and cannot ignore the List of Names and Addresses of the national officers of the political party registered with them.

(v) An injunction restraining the defendants from recognizing or continuing to recognize or deal with the leadership of the second plaintiff except with the first plaintiff as guaranteed by the second plaintiffs constitution. See pages 10-11 of volume one of the records of appeal.”

The appellants have by an application dated and filed on 14/11/2005 applied to be joined as parties to the suit. The trial court on 8/5/2000 so ordered; they were joined as 3rd and 4th defendants to this suit by the trial court. The other crucial suit in this matter is as per suit No. FCT/HC/CV/278/2005.

I must emphasize that in suit No.FCT/HC/CV/278/2005 filed on 31/1/2005 the 3rd and 4th plaintiffs/respondents herein have jointly with one Dr. Hassan Bello and Barrister Maxi Okwo as plaintiffs sued the appellants and thirteen others at the High Court of the Federal Capital Territory seeking inter alia the following reliefs:

“(i) A declaration that the defendants are no longer members or national officers of the first plaintiff.

(ii) A declaration that the second, third and fourth plaintiffs are duly and only National Chairman, Deputy National Chairman (North) and Deputy National Chairman (South) respectively of the first plaintiff.

(iii)   A declaration that the first defendant is not the National Chairman of the first plaintiff.

(iv)   An injunction restraining the first to the eleventh defendants from parading themselves as national officers of the first plaintiff.

(v) An injunction restraining the first to the fourteen defendants from parading themselves as members of the first plaintiff.

(vi)   A declaration nullifying the purported suspension or expulsion of the second, third and fourth plaintiffs from the first plaintiff. See pages 186-188 of the records of appeal.”

As it appears, undoubtedly, this matter has long and complex history particularly in keeping track of the changing titles of the parties in these suits. This has not made following this matter any easier. However the two cases (that is FCT/HC/CV/278/2005) and FHC/ABJ/CS/478/2005) mentioned above seem to me to form the crux of the contention in the dispute between the parties. Nonetheless for completeness of case profiles in this matter there is one other suit that is hinged to this dispute to wit: Suit No. FHC/ABJ/CS/346/2005; its fate will manifest in the course of this judgment.

In Suit No.FHC/ABJ/CS/346/2005 filed on 29/6/2005 by the 3rd and 4th respondents as plaintiffs against the 1st and 2n respondents as defendants, the plaintiffs have sought a number of declaratory and injunctive reliefs. I must early enough in discussing this matter recall that in suit No.FCT/HC/CV/278/2005 the 3rd and 4th defendants/ respondents in this suit were joined as 15th and 16th defendants as per the record. However by notice of discontinuance the names of the said 15th and 16th defendants were removed without affecting the subject matter and character of the suit, which remained intact. Hot on the heels of having withdrawn against the 15th and 16th defendants in suit No.FCT/HC/CV/278/2005 the 3rd and 4tln respondents as the plaintiffs filed yet another suit No.FHC/ABJ/CS/346/2005 and again against the 1st and 2nd defendants/respondents herein. This suit as per the record has been struck out as an abuse of process by Nyako J. There is no appeal against this decision. Rather the 3rd and 4th plaintiffs/respondents have filed the instant action i.e. FHC/ABJ/CS/478/2005. Chief Victor Umeh and Alhaji Sani Shinkafi (the appellants) herein by the order of the trial court have been joined as 3rd and 4th defendants to the aforesaid suit.

As can be gathered from the foregoing, a fierce tussle to control the soul of the party (APGA) is raging between the plaintiffs on the one hand and the 3rd and 4th defendants on the other. The 3rd and 4th defendants having in the instant matter raised the issue of an abuse of process vis-à-vis suit No FCT/HC/CV/278/2005, I think, restricts my discussion to the two suit aforesaid.

No sooner had the 3rd and 4th defendants/appellants were joined as parties in suit No.FCT/ABJ/CS/478/2005 than they filed an application in the trial court praying to dismiss the instant suit as an abuse of process or alternatively to strike out the suit for lack of jurisdiction as per pp.165-166 of Vol.1 of the record. Their grounds for the application are:

“(a)   In suit No.FCT/HC/CV/278/05 All Progressive Grand Alliance (APGA) and 3 Ors v. Chief Victor Umeh & 3 Ors, the same plaintiffs herein brought an action against the same defendant in the suit before the High Court of the FCT Abuja.

(b) The subject matter of Suit No.FCT/HC/CV/278/2005 referred above, pending before the High Court of the FCT, Abuja is on all fours with the subject matter of this present suit.

(c) Suit No.FCT/HC/CV/278/05, referred to above is past heard the plaintiffs having closed their case, the suit is adjourned for the conclusion of defence witness.

(d) Consequently, the present suit constitutes a gross abuse of process and the Honourable Court is without jurisdiction to entertain same.”

If I may repeat, the trial court heard the parties’ respective submissions on the application and in a considered ruling dismissed the application with these poignant words at p.66 of Vol.11 of the record:-

“In the instant case two cases had hitherto been filed by the plaintiffs against the defendants but these cases from the evidence before the court were discontinued before this present action was filed. The situation where a party will file an action and discontinue and refile in a situation such as has manifested in this case is not in any manner tantamount to an abuse. There is no disclosed intention as a fact before the court to use the process of court improperly in the annoyance of the defendants. I therefore hold that there is no abuse of process in this case. The objection is therefore dismissed.”

Aggrieved by the decision, the defendants filed a Notice of Appeal dated 30/10/2006. Parties in accordance with the rules of the court below filed and exchanged their respective briefs of argument. The plaintiffs brief of argument is dated 29/11/2006 while the 3rd and 4th defendants’ brief of argument is dated 7/12/2006. The appeal before the court below was heard on 13/12/2006 and on 14/12/2006 the court below delivered its judgment; in dismissing the appeal it opined in these words:

“It is apparent that the end result of the two suits are meant to have an impact on the leadership of the 4th respondent the party – APGA but the 3rd respondent has his grievance towards those he considered to “be dissident factors in the party which suit is before the Federal Capital Territory High Court as FCT/HC/CV/278/05. The Suit FHC/ABJ/CS/478/05 before the Federal High court is against the Chairman INEC and INEC, the 1st and 2nd respondents challenging their intermeddling with the affairs of the party by giving recognition to the appointment of Chief Victor C. Umeh as the Ag. National Chairman of APGA in the letter dated 28/6/06 contrary to the constitution of the party, 1999 Constitution of the Federal Republic of Nigeria and the Electoral Law. I cannot identify any multiplicity of action here or abuse of the judicial process. Parties are permitted to air their grievance at the law courts as when there is a right there must be a remedy. Falobi v. Falobi (1976-9) 10 SC; Bello v. A-G Oyo State 1986 5 NWLR (Pt. 44) pg.828.” (Underlining supplied)

The above underlined phrase has constituted the crux of the controversy in this appeal. The court below all the same, rallied round to the conclusion at p.242 of the record by dismissing the application as lacking in merit and affirmed the decision of the trial Court. The 3rd and 4th defendants still dissatisfied with decision have appealed by a Notice of Appeal dated 18/12/2006 with leave of the court below granted on 9/3/2007 to this court. Parties, have in accordance with the rules of this court filed and exchanged their respective briefs of argument. The 3rd and 4th defendants/appellants herein have raised two issues for determination to wit:

“a.  Whether this suit which is meant to have the same impact as the earlier suit No. FCT/FIC/CV/278/2005 on the leadership of the 4th respondent constitutes an abuse of process.

  1. Whether the court below correctly examined the case presented before it and reached the right conclusion on the issues submitted to it.”

The 1st and 2nd defendants/respondents have raised a lone issue for determination to wit:

“Whether the Court of Appeal was right to hold as it did hold that the action in suit No.FCT/HC/CS/478/2005 that precipitated to this appeal does not amount to an abuse of the judicial process.”

The 3rd and 4th plaintiffs/respondents on their part also raised two issues for determination to wit:

“Whether the court below was right in holding that the 3rd and 4th respondents’ suit did not constitute an abuse of court process and dismissing the appeal.

“Whether the ruling of Nyako J. on a preliminary objection in suit No. FCT/ABJ/CS/346/2006, wherein the appellants were not parties, constitute an issue estoppel as to bar the 3rd and 4th respondents from instituting the instant suit.”

The arguments of the parties as per their respective briefs have been rather unnecessarily tedious otherwise on the parties’ showing this is a very simple matter. The argument on the case of the 3rd and 4th defendants/appellants, if I may sum up, is that the suit No FCT/HC/CS/478/05 being on all fours with FCT/HC/CV/278/05 in regard to the subject matter, the parties and the issues constitutes a gross abuse of court process and thus the court lacks the jurisdiction to entertain the same. They have again made heavy weather of the innocuous view of Adekeye JCA as expressed in the lead judgment to the effect that, “it is apparent that the end result of the two suits are meant to have an impact on the leadership of the 4th respondent the party – APGA”. It is urged on the court that on the abundant credible evidence on the printed record the court below in error has found no multiplicity of action amounting to an abuse of court process. The guiding principles in this respect it is submitted are as encompassed in the cases of Ojah v. Ogboni (1996) 6 NWLR (pt.454) 272; Martins v. C.O.P. (2005) NWLR (Pt.925) 614 at 634; Ogbu v. Wokoma (2005) 14 NWLR (pt.944) II at 140, (2005) 8 SCM, 170; Minister for Works and Housing v. Thomas Nig. Ltd (2002) 2 NWLR (Pt. 752) 740 at 780 and 785 and Dumez Nig. Plc v. UBA Plc (2006, 14 NWLR (pt.1000) 515 at 526.

The appellants have also submitted that in as far as the parties, the subject matter and the issues are congruent in the two suits that it is manifestly perverse to hold that the instant suit does not constitute an abuse of court process. This court it is urged should rightly intervene to avoid a miscarriage of justice.

On the general attitude of courts to abuse of court process the appellants have referred to renowned cases to elucidate on the same. See – Agwasim & Anor. v. Ojichie & Anor. (2004) 9-12 SCM (Pt.2); (2005) 10 NWLR (Pt.882) 613 at 624E; Theophilus Nnama & Ors v. George Nwanebe & Ors (1991) 1 NWLR (Pt.172) 181 at 190; The Royal Bank of Scotland Ltd v. Citrusdal Investment Ltd (1971) 3 AER 558 at 562; Thomas Launches Ltd v. Corporation of the Trinity House of Deptford Strond (1961) 1 AER 26 at 32-33; Okorodudu v. Okoromadu (1977) NSCC (Vol. 11) 105 at 109 and Ukachukwu v. UBA (2005) 18 NWLR (Pt.956) 1 at 63. On whether striking out suit No.FHC/HC/CS/346/2005 as an abuse of court process constitutes an issue estoppel vis-à-vis the instant suit; the appellants have relied on the cases of Hunter v. Chief Constable of West Midlands Police (1981) 3 WLR 906; Aro v. Fabolude (1983) ANLR 67 at 79 and Fashanu v. Adekoya (1974) 1 ANLR, to substantiate their submissions that it does constitute an issue estoppel. The appellants have therefore, urged the court to dismiss the suit for being an abuse of process.

The 1st and 2nd defendants/respondents, have argued that the instant suit is an abuse of process as the appellants have featured in all the suits either as original parties or have been joined as parties. They have submitted that the 3rd and 4th plaintiffs/respondents with improper motive commenced suit No.FHC/ABJ/CS/478/2005 as an abuse of court process during the pendency of suit No.FCT/HC/CV/278/2005 and rely on Saraki v. Kotoye (1992) NWLR (Pt.264) 156 at 188 per Karibi-Whyte JSC and Minister of Works v. Tomas (Nig) Ltd (2002) 2 NWLR (Pt. 752) 740. Also see: Arubo v. Aiyeleru (1993) 3 (Pt.280) 126 per Nnaemeka-Agu, JSC citing Wills v. Earl of Beauchamps (1886) to buttress the point on multiplicity of action as grounding the abuse. The court is urged to allow the appeal and dismiss the action before the trial court. I must subjoin here that the 1st and 2nd defendants/respondents have not appealed the decision of the Court below yet they are here urging that the appeal be allowed. They have not been challenged on this ground. And ask shouldn’t they be supporting the judgment instead? I say no more on this matter.

The 3rd and 4th plaintiffs/respondents as per their brief of argument have argued that an examination of suit No.FCT/ABJ/HC/CV/278/2005: Chief Chekwes Okorie of All Progressives Grand Alliance and 3 others v. Chief and 13 others and the instant suit No. FCT/ABJ/CS/478/2005: Chief Chekwas Okorie and Anor. v. Professor Maurice Iwu and 3 others  has showed that the suits are not the same as to the parties and the subject matter and the issues to ground an abuse of process. See Osoejeofo v. Ogoejeofo (2006) 1 SCM, 113; (2006) 3 NWLR (Pt.966) 205 at 220 and Okafor v. AIG Anambra State (1991) 6 NWLR (Pt.200) 659 at 681. And so, there is no multiplicity of action. The point has also been taken that from different suits though of the same subject matter may emanate different rights and reliefs; and that the question of multiplicity of action in such instances is completely non-sequitur See: Christian Outreach Ministries Inc. v. Cobham (2006) 15 NWLR (Pt. 1002) 283 at 305-307. They submit there is no intention to harass, annoy or irritate the appellants by the filed suits. They have also adverted to Sections 251(1)(p)(q)(R) and 257 of the 1999 Constitution and the case of NEPA v. Edegbenro (2003) 9 WRN1 in withdrawing against the 1st and 2nd defendants/ respondents in suit No. FCT/NC/CV\278/2005 being Federal agencies and could not be sued in the FCT High Court. They further submit that the cases of Agwasim & Tomas and Dumez Nig. Plc and Ojichie referred to above as to where the same parties seek the same reliefs against the same opponents. On the question of concurrent finding of fact they have relied on the cases of Amadi v. Orisakwe (2005) 7 NWLR (Pt.711) 206; (2005) 2 SCM, 17; Ezeonwu v. Onyechi (1996) 3 NWLR (Pt.438) 499 and Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76 in contending that the court cannot intervene here against the concurrent findings of the lower courts without showing element of perversity in the instant suit.

Again, they have contended that there is no basis to raise a plea of issue estoppel when the appellants are not parties in the suit No.FHC/ABJ/CS/346/2005 and have referred to Chief Christmas Egba v. Chief Melford Await (2005) 10 NWLR (Pt.934) 464 at 481 CA and Muda Anwoyi v. Shodeke (2006) 6 SCM 1; (2006) 13 NWLR (Pt.996) 34 and 50-51 on the principle governing issue estoppel.

Lastly, they contend that the issue estoppel must be final (that is given on the merits of the case) as against what has happened here where the suit No. FHC/ABJ/C5/O46/2005 has been merely struck out. See Oyede v. Olusesi (2005) 16 NWLR (Pt.951) 341. It is on this note that the 3rd and 4th plaintiffs/respondents have urged the court to dismiss the appeal and to affirm the concurrent decisions of the courts below.

I think, if I may, to underscore the point in dealing with this appeal, a resume of the crucial suits filed by the plaintiffs so far will clearly show whether the subject matters, parties, and issues are the same in both suits No.FHC/ABJ/CS/478/2005 and FCT/HC/CV/278/2005. in order to sustain a charge of abuse of court process leveled against suit No. FHC/ABJ/CS/478/2005 See: Okafor v. Attorney-General of Anambra State (supra). The record has showed that suit No.FHC/ABJ/CS/478/2005, has been instituted by a writ of summons dated 23/9/2005, by the 3rd and 4th respondents herein as plaintiffs at the Federal High Court against the 1st and 2nd respondents herein as the only defendants. At this stage of the proceedings the appellants have not become parties to the said suit when the 1st and 2nd respondents have sought by an application to strike out the said suit No. FHC/ABJ/CS/478/2005 as an abuse of process vis-à-vis suit No.FCT/HC/CV/278/2005; the application has however been dismissed. The 3rd and 4th defendants, the appellants herein have applied by an application dated 14/1 1/2005 to be joined to the instant suit as parties and as per the record they have been joined as 3rd and 4th defendants in the suit. The 3rd and 4th defendants immediately have thereafter filed an application to dismiss the said suit as constituting an abuse of Court process just as 1st and 2nd defendants/respondents did earlier, by contending that having regard to the number of suits so far filed by the plaintiffs against the defendants the institution of the instant action has been done with improper motive to annoy, irritate and embarrass the defendants. This application has also been dismissed. The record has showed that the 3rd and 4th defendants have appealed to the Court below which also dismissed the appeal hence they, i.e. the 3rd and 4th defendants, have now appealed to this court by a Notice of Appeal dated 18/12/2006. Briefs of argument from both sides of the suit have been filed and exchanged. I will come back to this matter later.

That said, the plaintiffs in the earlier suit No. FCT/HC/CV/278/2005: All Progressives Grand Alliance and 3 ors against Chief Victor Umeh and 13 Ors. have challenged the continued impersonation by the 1st to 11th defendants and 1st and 14th defendants as National Officers and members of the party respectively.

It has to be noted that the 1st and 2nd respondents herein have not been parties to this suit ab intio but on the plaintiffs’ application have been joined as 15th and 16th defendants; as per the record so as to be bound by the decision.

However, during the pendency of the aforesaid case, the 4th respondent received the 1st respondent’s letter withdrawing the recognition accorded him (the 1st plaintiff/3rd respondent) as the National Chairman of the Party and according recognition to the 3rd defendant/1st appellant herein i.e. Chief Victor Umeh as the acting National Chairman of APGA. The 3rd and 4th respondents as plaintiffs have therefore instituted yet another suit No. FMC/ABJ/CS/346/2005 by originating summons questioning the competence of the 1st and 2nd respondents to do so. The said suit has now been struck out as an abuse of court process on grounds of multiciplicity of action. In regard to suit No. FCT/HC/CV/278/2005 the appellants have been joined as 15th and 16th defendants but the trial Court has granted it without adverting to the fact that they are Federal Agencies not subject to the jurisdiction of the FCT High Court. Hence the plaintiffs, 3rd and 4th respondents have applied in suit No FCT/HC/CV/278/2005 to discontinue against the 15th and 16th defendants a they are Federal agencies not subject to the jurisdiction of the FCT High Court. Having cleared that out of their way, the 3rd and 4th respondents as plaintiffs have instituted the instant suit No. FCT/HC/CV/478/2005 against the 1st and 2nd defendants/respondents herein; in short challenging the competence of the 1st and 2nd defendants/respondents’ action in dealing with the Recognition of National Chairman or Acting National Chairman in regard to any other persons contrary to the party’s constitution and the 1999 Constitution. An office the 1st plaintiff/3rd respondent still holds.

The point has rightly been taken in regard to suit No. FCT/HC/CV/478/2005 that apart from joining of the 3rd and 4th defendants/appellants to the said suit the record has showed that no consequent amendments of the Statement of Claim reflecting the said joiner of the appellants as 3rd and 4th defendants to the suit have been effected; indeed no claims or reliefs have in fact been sought against them.

From the number of suits being bandied about in this appeal, the plaintiffs (3rd and 4th respondents) have instituted a number of the suits in the leadership tussle in the 4th respondent (i.e. APGA). This has generated question of abuse of Court process. The appellants have in this regard observed to the effect that categories of situations and conditions that ground abuse of process are not closed. And I agree. In other words the list is inexhaustive as each incident of abuse of Court process has to be established from the circumstances of each particular case as exemplified in the suit of Anyaduba v. N.R.T. Co. Ltd. (1990) 1 NWLR (Pt. 127) 397 at 407.

Along side this premise particularly, with respect, must be noted the fact that it is settled law that generally abuse of process contemplates multiplicity of suits between the same parties in regard to the same subject-matter and on the same issues. See: Ogoejeofo v. Ogoejeofo (supra) and (Okafor v. Attorney-General of Anambra State (supra) The bottomline of these authorities in regard to abuse of process is that to institute an action during the pendency of another suit claiming the same relief is an abuse of Court process and the only course open to the Court is put an end the suit. See: Aruko v. Aiyeleru (supra). It does not matter whether the suit is on appeal, the subsequent action would constitute an abuse of process. The attitude of the Courts is to strike out the suit filed in abuse of process. Abuse of Court process therefore simply in practical sense denotes a situation where a party has instituted a multiplicity of suits against the same opponent in respect of the same subject matter and on the same issues. This manner of using Court process as obviously lacking in bona fide leads to the irritation and annoyance of the other party and thus impeding due administration of justice. See: Okorodudu v. Okoromadu (1977) 3 SC 21.

Therefore, to sustain a charge of abuse of process as in the instant suit there must coexist inter alia (1) a multiplicity of suits (2) between the same opponents and (3) on the same subject matter; and (4) on the same issues. It is against the backdrop of these conditions that one has on the issue of abuse of process in the instant matter to scrutinize the aforesaid suits – No FCT/HC/CS/278/2005:

All Progressives Grand Alliance & 3 Ors. v. Chief Victor Umeh & 13 Ors. and Suit No. FHC/ABJ/CS/478/2005 Chief Chekwas Okorie & Anor. v. Professor Maurice Iwu & 3 Ors. Certainly the parties are not the same and it is particularly so when the appellants are no longer parties in the suit No. FCT/HC/CS/278/2005. On the question of having the same parties in both suits the Court below has observe thus:

“I have looked through the facts on printed record and circumstances of initiating the suits before the Federal Capital Territory High Court and the Federal High Court Abuja. It is apparent that the end result of the two suits are meant to have an impact on APGA but the 3rd Respondent has grievance towards those he considered to be dissident factors in the party which suit is before the Federal Capital Territory High Court as FCT/HC/CV/278/2005. The Suit No. FHC/ABJ./CS/478/2005 before the Federal High Court is against the Chairman INEC and 1NEC, the 1st and 2nd Respondents challenging their intermeddling with the affairs of the party by giving recognition to the appointment of Chief Victor C. Umeh as the Ag. National Chairman of APGA in the letter dated 28.6.2006, contrary to the Constitution of the Party, 1999 Constitution of the Federal Republic of Nigeria and the Electoral Law. I cannot identify any multiplicity of action here or Abuse of the judicial process. Parties are permitted to air their grievance at the law courts as when there is a right there must be a remedy”, (underlining for emphasis)

I agree with this brilliant finding; it has captured at once the principles on abuse of process. It cannot be faulted. If I may recall, the appellants according to the record, have been joined as 15th & 16th defendants to suit No. FCT/HC/CS/278/2005. The joinder, however, has to be revoked when the plaintiffs discontinued against them i.e. 15th & 16th defendants. Interestingly enough, the appellants have taken the issue of multiplicity of suits as an abuse of process vis-à-vis the instant suit when the appellants are no longer parties to one of the suits i.e. FCT/HC/CV/278/2005. They cannot run away from that fact to hinge their entire case on the finding that as the two suits have impact on the leadership tussle of the 4th respondent (APGA) the instant suit without more constitutes an abuse of process. It is doubtful if they can make out a case of abuse of process on these peculiar facts. But without deciding the point I have however to express the reservation on their right to initiate the instant application this time when there is a big question mark hanging on it competence.

As the application has not been challenged on this ground I say no more on it except to wait for an opportunity when Counsel’s address is drawn to such an issue.

I now go on to demonstrate that moreso on the merits the charge of abuse of process here cannot stand. On the question of the same subject matter in both aforesaid suits – the instant suit No.FHC/ABJ/CS/478/2005 as per the record has been instituted to challenge the 1st and 2nd defendants/respondents on their power to attempt to confer recognition of National Chairman of Acting National chairman of the 2nd plaintiff/4th respondent to any other persons but the 1st plaintiff/3rd respondent contrary to the Party’s Constitution and an order of injunction. The suit No.FCT/HC/CV/278/2005 on the other hand is founded on a declaration that the 1st to 11th defendants are no longer members of the party and on the expulsion of the 1st and 14th defendants from the party. Again, the subject matter in either of the two suits is not the same. It is difficult to see how the charge of abuse of Court process can be made to stand on these facts; it cannot.

On whether the two Suits have raised the same issues, it goes without much debating of the point that this is not so. Based on the above careful appraisal of the two suits, the contending issues in both suits are not the same There can be no doubt therefore, that the conditions I have set out above to guide my discussion on abuse of process in this matter are non-existent in the two suits and therefore this issue has to be resolved against the appellants and in favour of the respondents. I have not found any abuse of Court process or the facts of the aforesaid two suits even though in the end they may have their roots in the tussle for leadership of the 4th respondent (i.e. APGA).

The point has to be made, all the same, that on the facts particularly or the question of the plaintiffs filing the two aforesaid suits contemporaneously there is no evidence of overreaching. Nor can the appellant be heard to complain of want of bona fides in filing both suits. The plaintiffs have showed reasonable causes of action in the two suits. I have expatiated on these above. This is not a case where the granting of the reliefs in one suit will appease in satisfaction the wrongs alleged in the other suit or where all reliefs accruing from a cause of action are being claimed in more than one action.

See: Savage v. Uwaechia (1972) 1 ANLR (Pt. 1) 251. The aforesaid two suits are founded on two separate and distinct causes of action. They have given rise to two separate and distinct reliefs as I have showed herein. I have in my discussion also showed that there is no ground contending that the disposal of any of the suits will completely dispose of the issues for determination in the other suit. And so, any pronouncement in the instant suit will have no effect whatsoever on suit No. FCT/HC/CV/278/2005. This is so even though the 15th and 16th defendants may be interested in the result of suit No. FCT/HC/CV/278/2005. Besides, even more importantly, the 3rd and 4th respondents/plaintiffs in the instant case have inspite of the joinder of 15th and 16th defendants made no claims, that is to say, have sought no reliefs against the 15th and 16th defendants in the said suit. It is my view therefore and in this regard I agree with the 3rd and 4th respondents.

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