In The Court of Appeal of Nigeria

On Monday, the 12th day of January, 2004




MAHMUD MOHAMMED   Justice of The Court of Appeal of Nigeria

JOHN AFOLABI FABIYI   Justice of The Court of Appeal of Nigeria

CLARA BATA OGUNBIYI   Justice of The Court of Appeal of Nigeria





    3. MR. UDUAKOMIKRI Respondent(s)

MOHAMMED, J.C.A. (Delivering the Leading Ruling): By a motion on notice dated, 5/1/2004, the applicants have applied to this court for an order of injunction restraining the respondents in the application from enforcing the order of the Enugu High Court dated 2/1/2004 directing the 2nd respondent to remove the 1st applicant from office as Governor of Anambra State pending the determination of their appeal also filed on 5/1/2004.
When the application came up for hearing this morning Chief Awomolo, SAN learned Senior counsel for the 1st respondent raised preliminary objection to the hearing of the application as this court has no jurisdiction to hear the application on the ground that it is absolutely incompetent and a gross abuse of the process of this court.
This is because according to the learned senior counsel, the applicants had filed a similar application before the Enugu High Court on the same 5/1/2004 asking for the same reliefs being sought in this court. That the applicants had also filed similar application at the Anambra State High Court, Awka in Suit No. A/230/03. Dr. Chris Nwabueze Ngige v. Speaker House of Assembly Anambra State & Anor. and obtained an order restraining the 1st respondent herein from implementing or enforcing the same judgment the subject matter of the application pending in this court. Learned Senior Counsel emphasised the Awka High Court heard the application and granted on the same day 6/1/2004. That relying on the processes before this court, it is clear that there exists in this matter a multiplicity of actions between the same parties on the same cause of action and seeking the same reliefs. Relying on a number of cases including Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 188-189; C.O.P. v. Fasheun & Ors. (1997) 6 NWLR (Pt. 507) 170 at 174 and Arubo v. Aiyeleru (1993) 3 NWLR (Pt. 280) 126 at 130.
Learned Senior Counsel maintained that the applicants’ application for hearing this morning is a gross abuse of court process and argued this court to dismiss the application.
In his response, Udechukwu, SAN, learned Attorney General of Anambra State observed that there was no competent preliminary objection before this court in the absence of an affidavit to support the facts being relied upon as the counter affidavit filed in opposing the application yet to be heard cannot be used in support of the preliminary objection. Furthermore, learned Attorney general submitted that as there was no appeal pending in this court, arising from the case before the Awka High Court in which the 1st respondent in the application in this court is not a party, shows that the parties in that case and the present case in this court are not the same. Relying on the case of Torioda v. Williams (1982) (pt. 1) (Vol. 1) All NLR 177, learned Senior Counsel pointed out that even where similar matters are pending in two courts, the usual practice is to stay one and clear the other. Further relying on the case of Mohammed v. Hussein (1998) 14 NWLR (Pt. 584) 108 at 136, learned counsel argued that where appeal has not been entered in this court, both this court and the Enugu High Court have concurrent jurisdiction in entertaining interlocutory application on the matter and as such, the motion filed at the Enugu High Court in this matter does not amount to an abuse of process of court.
Miss Buraimoh, learned counsel to the 2nd respondent in the application before this court has nothing to say on the preliminary objection.
In deciding on this preliminary objection, what has to be determined is what amounts to an abuse of court process. Before applying the principle, this court must ensure that the parties are the same, issues and subject matter are the same. See Okorodudu v. Okorodudu (1977) 3 SC 21 and Kotoye v. Saraki (1992) 9 NWLR (Pt. 264) 156 at 188-189. In the present matter, we observed that in the proceedings before the Awka High Court in the proceedings herein, Senior Counsel to the objection concedes that the parties are not the same as the 1st respondent in the application before this court is not a party in that proceeding. We also observed that the order made by the High Court at Awka was made pending the determination of the substantive suit before it which order was therefore not made pending the determination of any appeal in terms of the present motion before this court.
Even then, commencement of similar proceedings in different courts would not constitute such an abuse of court process that can lead to a dismissal. One can be stayed for the other to proceed in desirable cases. See Toriola v. Williams (1982) (Pt. 1) Vol. 1 All NLR 177. The appeal has not yet been entered in this court, so this court as well as the court below share concurrent jurisdiction in matters pertaining to interlocutory applications. In this respect, both this court and the court below may take action to prevent the unusual from happening.
If the trial court upon a motion sets aside its judgment, the appeal is deemed abandoned. But once the appeal has been entered in this court, the court below ceased to have jurisdiction. See Mohammed v. Hussein (1998) 14 NWLR (Pt. 584) 108 at 136. Therefore, in respect of the present application now pending in this court, the applications pending before the Enugu High Court cannot turn it into an abuse of process of this court.
Accordingly, the preliminary objection is hereby overruled and the same is dismissed.

FABIYI, J.C.A.: I agree.

OGUNBIYI, J.C.A.: I agree.

Application dismissed.



Chief U. N. Udechukwu, SAN, Attorney-General of Anambra StateFor Appellant



Chief A. S. Awomolo, SAN – for the 1st Respondent
Bola Buraimoh [Miss] – for the 2nd RespondentFor Respondent


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