DANTIYE & ANOR v. INEC & ORS (2020)

DANTIYE & ANOR v. INEC & ORS

(2020)LCN/14681(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Tuesday, October 27, 2020

CA/KN/EPT/NA/175/2020

RATIO

APPEAL: DUTY OF AN APPELLANT IN AN APPEAL

It is settled law that it is not enough for an appellant to go before an appellate Court to repeat the case he presented before the lower Court with the hope that the appellate Court will come to different decision; he must attack the findings made by the trial Court – Uor Vs Loko (1988) 2 NWLR (Pt 77) 430 at 441, Onyejekwe Vs Onyejekwe (1999) 3 NWLR (Pt 596) 482 at 500-501, Jov Vs Dom (1999) 9 NWLR (Pt 620) 538 at 551, Awudu Vs Daniel (2005) 2 NWLR (Pt 909) 199 at 231, Ojeleye Vs The Registered Trustees of Ona Iwa Mimo Cherubim & Seraphim Church of Nigeria (2008) 15 NWLR (Pt 1111) 520 at 543. An appellant has a duty to show how the findings made the lower Court are perverse – Kayili Vs Yilbuk (2015) 7 NWLR (Pt 1457) 26, Ude Vs State (2016) NWLR (Pt 1531) 122, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92. PER ABIRU, J.C.A.

APPEAL: EFFECT OF FAILURE OF AN APPELLANT TO SHOW HOW THE FINDINGS OF A LOWER COURT ARE PERVERSE

Where an appellant fails to show how the findings of a lower Court are perverse, the task of an appellate Court is simply to examine the findings made by a trial Court to ensure that they accord with settled position of the law, and where this is the case, not to interfere with the findings – Dada Vs Bankole (2008) 5 NWLR (Pt 1079) 26, Akaninwo Vs Nsirim (2008) 1 SC (Pt III) 219. PER ABIRU, J.C.A.

ABUSE OF PROCESS: CONCEPT OF ABUSE OF PROCESS

Abuse of process is a concept; it is an idea or a general notion formed by generalization from particular examples. It is a concept that is imprecise. It involves circumstances and situations of infinite variety and conditions. In Messrs NV Scheep & Anor Vs The MV ‘S Araz’ & Anor (2000) 15 NWLR (Pt 691) 622 at page 664 Karibi-Whyte JSC said of the concept thus:
“The legal concept of the abuse of the judicial process or the abuse of the procedure of the Court is very wide. The scope and content of the circumstances of the material facts and conduct, which will result in such abuse, are infinite in variety. It does not appear that the category can be closed. New unforeseen conduct from the stratagem of the plaintiffs can give rise to the abuse. An abuse may be constituted through a proper and legitimate conduct in bringing actions even in the exercise of an established right in the manner or time of instituting actions. It may be constituted by irregularities in the pursuit of actions.”
Perhaps the most firmly established practical example of abuse of process is instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues, or a multiplicity of action on the same matter between the same parties, even where there exists a right to begin the action – Jadesimi Vs Okotie-Eboh (1986) 1 NWLR (Pt 16) 264, Saraki Vs Kotoye (1992) 9 NWLR (Pt 264) 156, Jimoh Vs Starco (Nig) Ltd (1998) 7 NWLR (Pt 558) 523, Abubakar Vs Bebeji Oil and Allied Products Ltd (2007) 18 NWLR (Pt 1066) 319, Tomtec (Nig) Ltd Vs Federal Housing Authority (2009) 18 NWLR (Pt 1173) 358. PER ABIRU, J.C.A.
ABUSE OF PROCESS: COMMON FEATURE OF ALL CASES ON ABUSE OF PROCESS

A common feature of all the cases on abuse of process is that the concept is the improper use of the judicial process by a party in litigation to interfere with the efficient and effective administration of justice to the irritation and annoyance of his opponent. An abuse of process does not lie in the right to use a judicial process but rather in the manner of the exercise of the right. It consists of the intention, purpose or aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice; it is the inconveniences and inequities in the aims and purposes of the action – Saraki Vs Kotoye supra, Ogoejeofo Vs Ogoejeofo (2006) 3 NWLR (Pt 966) 205, Ali Vs Albishir (2008) 3 NWLR (Pt 1073) 94, Igbeke Vs Okadigbo (2013) 12 NWLR (Pt 1368) 225.
Thus, the fact that a party has a right to commence an action is irrelevant and immaterial in determining whether that action amounts to an abuse of process. What is relevant and material is whether the action is a multiple action of a pending suit on the same subject matter against the same opponent on the same issues, or a multiplicity of action on the same matter between the same parties. PER ABIRU, J.C.A.

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

1. HON NASIRU GARBA DANTIYE 2. PEOPLES DEMOCRATIC PARTY (PDP) APPELANT(S)

And

INDEPENDENT NATIONAL ELECTORAL COMMISSION 2. MUSA MUHAMMAD ADAMU 3. ALL PROGRESSIVES CONGRESS (APC) RESPONDENT(S)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling on preliminary objection and the judgment of the National and State Houses of Assembly Election Petition Tribunal sitting in Dutse, Jigawa State delivered in Petition No EPT/JG/NASS/REP/01/2020 by the Chairman and the Honorable Members of the Tribunal on the 31st of August, 2020.

The petition leading up to the appeal arose out of the bye election conducted by the first Respondent on the 14th of March, 2020 for the seat of Member of National Assembly representing Babura/Garki Federal Constituency of Jigawa State. The first Appellant was the candidate of the second Appellant in the said bye election while the second Respondent was the candidate of the third Respondent. At the conclusion of the election, the second Respondent was declared as the elected Member of National Assembly representing Babura/Garki Federal Constituency with a total of 48,218 votes as against the first Appellant, his closest rival, with 24,135 votes. By a petition filed on the 3rd of April, 2020, the first and second Appellants challenged the

declaration and return of the second Respondent on the following grounds:
i. That at the time of the bye-election for Babura/Garki Federal Constituency of Jigawa State held on the 14th of March, 2020, the second Respondent was not qualified to contest and to be bye-elected to the office of Member of National Assembly representing Babura/Garki Federal Constituency of Jigawa State.
ii. That the second Respondent was not duly elected by majority of lawful votes cast at the bye-election.

The facts pleaded by the Appellants in support of their case of non-qualification of the second Respondent were that the second Respondent presented forged documents to the first Respondent in support of his nomination form. It was their case that in the ‘affidavit in support of particulars’ submitted to the first Respondent, the second Respondent (i) claimed that he is the holder of the Statement of Result issued by Top Quality College to Mohammed Musa Adam; (ii) represented as true, a Statutory Declaration of Age deposed to at the Registry of the High Court of the Federal Capital Territory Abuja on the 10th of January, 2009 being a Saturday and 10th of

September, 2009 being a Thursday simultaneously; (iii) represented as true, an affidavit deposed to at the High Court of the Federal Capital Territory in 2009 containing facts of loss of Voter’s Card; (iv) represented as true, an affidavit of fact explaining the discrepancy between his name and the name on the Statement of Result issued by Top Quality College to Mohammed Musa Adam; (v) representing to the first Respondent that he is the person described as the holder of the Statement of Result in respect of the West African Senior Secondary School Certificate Examination issued by Top Quality College to Mohammed Musa Adam; and (vi) representing that Top Quality College wrongfully spelt his name as Mohammed Musa Adam. It was their case that all these documents attached to the ‘affidavit in support of particulars’ were forgeries.

It was their case that the second Respondent also deposed to an affidavit that he worked with the Abuja Municipal Council Area from 2009 to 2019 while the letter of resignation to the first Respondent indicated that the second Respondent was still in the service of the Council as at 31st of January, 2020. It was

their case that by reason of the above, the second Respondent failed to present facts to show (a) that he has fulfilled the age requirement to contest the elections; (b) that he has the requisite educational qualification to contest the elections; and (c) that he had resigned his appointment from his previous employment within thirty days before the date of the conduct of the elections. It was their case that having not been qualified to contest the elections, all the votes credited to him in the election were unlawful, wasted and null votes which must be discountenanced and that the first Appellant was thus the person duly elected by majority of lawful votes cast at the bye-election.

In response to the Petition, the first Respondent filed a notice of preliminary objection wherein it challenged the jurisdiction of the lower Tribunal to hear and determine the Petition on the grounds that (i) the matters pleaded by the Appellants were pre-election matters and which by virtue of the provision of Section 285 of the Constitution of the Federal Republic of Nigeria (as amended) by the 4th Alteration, the lower Tribunal cannot adjudicate upon; and (ii) that the

Petition constituted a gross abuse of the process of the lower Tribunal as the first Appellant had earlier instituted an action in Suit No FHC/ABJ/CS/295/2020 challenging the qualification of the second Respondent to contest the bye-election based on the same facts and that the action was pending when the Petition was filed and was still pending at the Federal High Court, Abuja Division. The preliminary objection was supported by an affidavit and the Originating Summons filed in the Federal High Court was attached as an exhibit.

The second Respondent filed a Reply to the Petition and he prefaced the Reply with a notice of preliminary objection which was on the same grounds as those raised by the first Respondent in its notice of preliminary objection. In the Reply, the second Respondent denied the case of the Appellants and averred that all the information he supplied in the ‘affidavit in support of particulars’ he submitted to the first Respondent were true and correct and that all the documents he attached thereto were genuine, and not forgeries, and that he fulfilled all the necessary conditions to qualify to contest the bye-election.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The third Respondent filed a notice of preliminary objection/Reply to the Petition. The third Respondent contended in the notice of preliminary objection that the Petition was incompetent because the Appellants only mentioned a “purported winner” and did not state the winner of the election as declared by the first Respondent and that this was contrary to provisions of the Electoral Act. The case of the third Respondent in its Reply was in the terms of the case averred by the second Respondent in his response to the Petition. The issue raised by the third Respondent on the notice of preliminary objection was subsequently constituted into a motion on notice.

The parties filed their written arguments on the notices of preliminary objection and on the motion on notice of the third Respondent. The lower Court took arguments on the processes and it reserved its Rulings thereon till the conclusion of the hearing of the substantive petition. The Petition thereafter proceeded to hearing and in the course of which the Appellants called one witness in proof of their case. The first Respondent and the third Respondent did not call a witness, and the

second Respondent also called one witness in proof of his case.

At the conclusion of trial, parties filed written addresses and sequel to the adoption of the addresses, the lower Tribunal delivered a Ruling on the notices of preliminary objection of the first Respondent and second Respondent and a Judgment on the substantive petition. In the Ruling, the lower Tribunal found that the Petition amounted to a multiple action and was thus an abuse of process and it upheld the preliminary objections of the first Respondent and second Respondent and it dismissed the Petition. In the judgment, the lower Tribunal found that the Appellants did not make out a credible case in proof of the Petition and it accordingly dismissed it.

The Appellants were dissatisfied with the Ruling and the judgment and they caused their Counsel to file a composite notice of appeal dated the 20th of September, 2020 and containing four grounds of appeal against them. In arguing the appeal before this Court, Counsel to the Appellants filed a brief of arguments dated the 6th of October, 2020 on the same day, while the first Respondent filed a brief of arguments dated the 9th of

October, 2020 on the 10th of October, 2020, the second Respondent filed a brief of arguments dated the 7th of October, 2020 on the 8th of October, 2020 and the third Respondent filed a brief of arguments dated the 9th of October, 2020 on the same day. At the hearing of the appeal, Counsel to the parties adopted their respective briefs of arguments as their oral submissions in the appeal.

Counsel to the Appellants distilled three issues for determination in the appeal and these were:
i. Whether the lower Tribunal was right to have held that the Appellants’ petition was an abuse of Court process because the Appellants had earlier filed Suit No FHC/ABJ/CS/295/2020 a pre-election suit, seeking the disqualification of the second Respondent from contesting the Babura/Garki Federal Constituency bye-election held on the 14th of March, 2020.
ii. Whether the Appellants failed to prove their case in spite of the evidence presented before the lower Tribunal in proof of their case of non-qualification of the second Respondent.
iii. Whether the lower Tribunal was right when it failed to accord probative value to Exhibits B1-B15 series and Exhibit C

because they were not tendered through the maker.

On his part, Counsel to the first Respondent distilled two issues for determination in the appeal and these were:
i. Whether the lower Tribunal correctly held that the Petition lacked merit and constituted an abuse of Court process having been filed during the pendency of Suit No FHC/ABJ/CS/295/2020 filed at the Federal High Court by the Appellants herein seeking for similar reliefs.
ii. Whether the lower Tribunal correctly held that the Appellants’ first witness was not competent to speak to Exhibits A, B series, C and D placed before it by the Appellants.

Counsel to the second Respondent also formulated two issues for determination in the appeal and these were:
i. Whether the lower Tribunal was right in holding that it is an abuse of the process of the Tribunal for the Appellants to simultaneously pursue the same issue of the qualification of the second Respondent before the Federal High Court Abuja in Suit No FHC/ABJ/CS/295/2020 and before the Tribunal.
ii. Whether having regard to the pleading and evidence led before the lower Tribunal, the Appellants were able to

establish that the second Respondent was not qualified to contest the Babura/Garki Federal Constituency bye-election conducted on the 14th of March, 2020.

Counsel to the third Respondent formulated one issue for determination in the appeal and this was:
Whether having regard to the pleadings and evidence adduced by the Appellants, the Appellants proved their petition to be entitled to the reliefs sought.

Reading through the records of appeal, particularly the processes filed by the parties before the lower Tribunal and the records of proceedings before the lower Tribunal, including the notes of evidence, the Ruling and the judgment appealed against, the notice of appeal of the Appellants, as well as the arguments contained in the briefs of arguments of the parties, this Court agrees with the Counsel to the first Respondent and Counsel to the second Respondent that there are two issues for determination in the appeal. These are:
i. Whether the lower Tribunal was correct when it found and held that, in the circumstances of this case, the Petition of the Appellants was an abuse of Court process.
ii. Whether, having regard to the

pleadings and evidence led by the parties, the lower Tribunal was correct when it found and held that the Appellants did not make out a credible case in proof of their Petition.

This appeal will be resolved on these two issues for determination and the Court will consider the arguments of parties in their respective briefs of arguments under the two issues for determination. The two issues for determination will be considered seriatim.

Issue One
Whether the lower Tribunal was correct when it found and held that, in the circumstances of this case, the Petition of the Appellants was an abuse of Court process

In arguing the issue for determination, Counsel to the Appellants referred to the provisions of Section 138(a) of the Electoral Act which lists one of the grounds for questioning an election as that a person whose election is questioned was, at the time of the election not qualified to contest the election and stated that all the allegations of the Appellants in their Petition were to the effect that the second Respondent gave false information to the first Respondent and presented forged documents on his qualifications to contest the

election and that as such there was no credible document and information to show that the second Respondent was qualified to contest the election in question and that as such their grounds for contesting the outcome of the election were well within the confines of Section 138(a) of the Electoral Act. Counsel stated that Section 31 of the Electoral Act also donates a cause of action to a person to challenge the nomination of a candidate of a political party on the ground that he has presented false information and that while the cause of action under Section 31 of the Electoral Act is a pre-election cause of action, the one under Section 138(a) of the Electoral Act is post-election cause of action.

Counsel stated that the first Appellant was thus invested with two causes of action by the Electoral Law, a post-election cause of action which he could pursue at the High Court and a post-election cause of action to be pursued before the Election Tribunal and he referred to the cases of Dangana Vs Usman (2013) 6 NWLR (Pt 1349) 50 and Fayemi Vs Oni (2019) LPELR 49291(SC). Counsel stated that the finding of the lower Tribunal that the Petition filed by the

Appellants to pursue the post-election cause of action on the qualification of the second Respondent to contest the election donated by Section 138(a) of the Electoral Act amounted to an abuse of process by reason of the fact that the first Appellant had pending and was pursuing an earlier action filed before the Federal High Court, Abuja to ventilate the pre-election cause of action also on the qualification of the second Respondent to contest the election donated by Section 31 of the Electoral Act was erroneous.

Counsel stated that the right donated in Section 31 of the Electoral Act was re-enacted as an additional ground for challenging the return of a candidate in Section 138(a) of the Electoral Act, 2015 (as amended) and he sought to distinguish the case of Dingyadi Vs INEC (2010) LPELR 40142(SC), which he said the lower Tribunal mainly relied on by pointing out that the facts of that case was different from those in the present case. Counsel stated that a case is only authority for what it decides and that the facts and circumstances of cases must be similar before one can serve as authority for the other and he referred to the cases of Dongtoe Vs CSC Plateau State (2001) 4 SC (Part II)

43 and Okafor Vs Nnaife (1987) 1 NWLR (Pt 67) 120. Counsel stated that in so far as there are two distinct causes of action donated by Section 31 and Section 138(a) of the Electoral Act, the two distinct cases predicated upon the two sections of the law cannot be said to amount to abuse of Court process. Counsel reiterated the causes of action donated by the two sections of the Electoral Act to the Appellants and stated that the first Appellant cannot be restricted in the exercise of the cause of action donated under Section 138(a) of the Electoral Act merely because he had exercised his right to the cause of action donated by Section 31 of the Electoral Act before the Federal High Court. Counsel stated that the law cannot give a right with one hand and prevent a party from exercising that right with the other hand and if this was to be the case, the Supreme Court would have said so clearly in its unreported decisions in the cases of Abubakar Vs INEC SC.12/2019 and Useni Vs INEC SC.150/2019 where it x-rayed the rights under Sections 31 and 138(a) of the Electoral Act.

Counsel stated that the effect of the decision

of the lower Tribunal is that a petitioner cannot challenge the qualification of Counsel before an Election Tribunal merely because he has challenged same under the provisions of Section 31 of the Electoral Act. Counsel stated that this is a derogation of the principle of statutory interpretation which enjoins a Court to take reasonable steps to give effect to the provisions of a statute unless expressly stated. Counsel stated that the lower Tribunal also failed to take into consideration the fact the second Appellant, who also had a right to file the Petition, was not a party to the proceedings in the Federal High Court and that this was sufficient to defeat the assertion of abuse of process and he referred to the provision of Section 137(1) of the Electoral Law and the cases of Buhari Vs Obasanjo (2003) LPELR 24859 and Congress for Progressive Change Vs Independent National Electoral Commission (2011) LPELR 12654(CA) on the right of the second Appellant to file a Petition.

Counsel stated that the Petition was thus properly constituted having been initiated in pursuance of the statutory rights donated by the law to the Petitioners and that the lower

Tribunal was in error to have treated same as an abuse of process. Counsel urged the Court to resolve the issue for determination in favour of the Appellants.

In arguing the issue for determination, Counsel to the first Respondent referred to the cases of Oyeyemi Vs Owoeye (2017) 12 NWLR (Pt. 1580) 364 and CBN Vs Ahmed (2001) 11 NWLR (Pt 724) 369 in reiterating what amounts to abuse of Court process and noted that the Petition of the Appellants in this present case sought to challenge the qualification of the second Respondent to contest the election on the very same grounds that he challenged the qualification of the second Respondent in an earlier action filed in the Federal High Court as Suit No FHC/ABJ/CS/295/2020 and stated that the Petition was a clear case of abuse of process deserving of a dismissal and he referred to the case of Ukachukwu Vs PDP (2014) 4 NWLR (Pt 1396) 65. Counsel stated that the parties in the two suits were the same and the reliefs sought were the same and that the Federal High Court dismissed the suit on the 16th of June, 2020 and that the appeal against the judgment was dismissed by the Court of Appeal on the 21st of August,

2020 and that the further appeal lodged at the Supreme Court as Suit No SC.627/2020 was presently pending. Counsel stated that the action of the Appellants in filing the Petition was an undiluted abuse of Court process as defined in the cases of Umeh Vs Iwu (2008) LPELR 3363(SC) and Abubakar Vs B.O. & A.P Ltd (2007) 18 NWLR (Pt 1066) 319.

Counsel stated that the Appellants erroneously sought refuge in the provisions of Section 31 and 138(a) of the Electoral Act in justifying their action, claiming that they possessed a twin cause of action, one pre-election and one post-election, but that the Appellants failed to understand that there is no law that supports the maintenance of two simultaneous actions to pursue the two causes of action and he referred to the case of Allanah Vs Kpolokwu (2016) LPELR 40724(SC). Counsel stated that while the law recognizes the twin causes of action, a party is at liberty to either institute an action in the High Court to pursue the pre-election cause of action or at the Election Tribunal to enforce the post-election cause of action and that the word is “or”, not “and”, and that in none of the

cases cited by the Counsel to the Appellants was what the Appellants did by filing simultaneous actions sanctioned.

Counsel stated that the lower Tribunal was clearly in the right when it dismissed the Petition as an abuse of process and he urged the Court to resolve the issue for determination in favour of the Respondents.

On his part, Counsel to the second Respondent conceded that the question of qualification of a candidate to contest an election is both a pre-election matter and a post-election matter, but stated that the law does not empower an aggrieved party to commence simultaneous and contemporaneous actions to contend the issue both as a pre-election matter before the High Court and a post-election matter before an Election Tribunal and that an aggrieved party can only contend the issue either as a pre-election matter or as a post-election matter and he referred to the case of Fayemi Vs Oni (2019) LPELR 49291(SC). Counsel stated that having chosen to commence an action before the Federal High Court in Suit No FHC/ABJ/CS/295/2020 to contest the qualification of the second Respondent to contest the election, it was no longer open to them

commence the Petition in the lower Court on the same grounds, for the same reliefs and between the same parties and he referred to the case of Dingyadi Vs INEC (2010) 18 NWLR (Pt 1224) 1.

Counsel stated that the contention of the Counsel to the Appellants that it was alright to do so because the second Appellant was not a party in the case before the Federal High Court is a lame argument as the first Appellant admitted both in the case in the Federal High Court and in the Petition that he was a candidate of the second Appellant and that this automatically made the second Appellant a privy of the first Appellant and it cannot run away from the consequences of the first Appellant’s filing of the case in the Federal High Court and he referred to the cases of Agbogunleri Vs Depo (2008) LPELR 243(SC), Agbalajobi Vs Governor Lagos State (2017) LPELR 41955 and Nwazota Vs Nwokeke (2010) LPELR 5101(CA), amongst others. Counsel stated that the first Appellant did not file a notice of discontinuance of the case in the Federal High Court after the Appellants filed the Petition and that the lower Tribunal was perfectly right therefore when it found that the

Petition was a clear case of abuse of process and in dismissing same. Counsel urged the Court to resolve the issue for determination in favour of the Respondents.

Counsel the third Respondent did not canvass any arguments on the first issue for determination.

As stated earlier in this judgment, the Petition in the lower Tribunal was filed by the Appellants to challenge the return of the second Respondent as Member of National Assembly representing Babura/Garki Federal Constituency of Jigawa State on the sole ground that he was not qualified to contest the said election. The case on non-qualification was based on the assertion that the second Respondent provided false information to the first Respondent in the ‘affidavit in support of particulars’, and which was supported by forged documents, when he:
i. claimed that he is the holder of the Statement of Result issued by Top Quality College to Mohammed Musa Adam;
ii. represented as true, a Statutory Declaration of Age deposed to at the Registry of the High Court of the Federal Capital Territory Abuja on the 10th of January, 2009 being a Saturday and 10th of September, 2009 being a

Thursday simultaneously;
iii. represented as true, an affidavit deposed to at the High Court of the Federal Capital Territory in 2009 containing facts of loss of Voter’s Card;
iv. represented as true, an affidavit of fact explaining the discrepancy between his name and the name on the Statement of Result issued by Top Quality College to Mohammed Musa Adam;
v. represented to the first Respondent that he is the person described as the holder of the Statement of Result in respect of the West African Senior Secondary School Certificate Examination issued by Top Quality College to Mohammed Musa Adam; and
vi. represented that Top Quality College wrongfully spelt his name as Mohammed Musa Adam.

It was also their case that the second Respondent deposed to an affidavit that he worked with the Abuja Municipal Council Area from 2009 to 2019 while the letter resignation to the first Respondent indicated that the second Respondent was still in the service of the Council as at 31st of January, 2020.

Prior to commencing the action before the lower Tribunal, the first Appellant filed an action in the Federal High Court, Abuja by an

Originating Summons in Suit No FHC/ABJ/CS/295/2020 against the same three respondents as in the Petition. The question submitted for adjudication was:
“Whether in the light of the provisions of Section 31 of the Electoral Act 2010 (as amended) the 2nd Respondent did not submit false information to the Independent National Electoral Commission to wit:
a. Claiming that he is the holder of the Statement of Result issued by Top Quality College to Mohammed Musa Adam;
b. Representing as true, a Statutory Declaration of Age purportedly deposed to at the Registry of the High Court of the Federal Capital Territory Abuja on the 10th of January, 2009 being a Saturday and 10th of September, 2009 being a Thursday simultaneously;
c. Representing as true, an affidavit deposed to at the High Court of the Federal Capital Territory on 16th of May, 2009 containing facts pertaining to the loss of Voter’s Card;
d. Representing as true, an affidavit of fact explaining the discrepancy between his name and the name on the Statement of Result issued by Top Quality College to Mohammed Musa Adam;
e. Representing to the first Respondent that he

is the person described as the holder of the Statement of Result issued by Top Quality College to Mohammed Musa Adam;
f. Representing to the Commission that he worked with the Abuja Municipal Council Area from 2009 to 2019 when in fact he worked with the Abuja Municipal Council between 2009 to 2020.

The relief sought on Originating Summons, in case of the above questions were answered in the negative, was:
A Declaration that in view of the information contained in:
a. The Statement of Result issued by Top Quality College to Mohammed Musa Ada;
b. The purported Statutory Declaration of Age purportedly deposed to at the Registry of the High Court of the Federal Capital Territory Abuja on the 10th of January, 2009 being a Saturday and 10th of September, 2009 being a Thursday simultaneously;
c. The purported affidavit deposed to at the High Court of the Federal Capital Territory on 16th of May, 2009 containing facts pertaining to the loss of Voter’s Card;
d. The purported affidavit of fact explaining the discrepancy between his name and the name on the Statement of Result issued by Top Quality College to Mohammed Musa Adam;

The representing to the first Respondent that the second Respondent is the person described as the holder of the Statement of Result issued by Top Quality College to Mohammed Musa Adam;
f. The representing to the first Respondent that the second Respondent worked with the Abuja Municipal Council Area from 2009 to 2019 when in fact he worked with the Abuja Municipal Council between 2009 to 2020 the second Respondent has presented false information to the first Respondent and therefore not qualified to contest for the post of Member representing Babura/Garki Federal Constituency of Jigawa State.

It is obvious that the basis of the Petition before the lower Tribunal and of the action before the Federal High Court is the same, the essence of the two actions is the same and the aims of the two actions are the same. Counsel to the Appellants conceded these facts and his contention was that the Appellants had the right to commence and pursue the two actions because the causes of action were donated by two different sections of the Electoral Act and that the Appellants could pursue the two causes of action simultaneously.

The lower Court considered the preliminary objections of the first Respondent and of the second Respondent and the arguments of Counsel to the Appellants in response. In a very well-articulated and beautifully written Ruling, the lower Tribunal enviably and commendably espoused the principles surrounding the concept of abuse of Court process, referring to several decisions of this Court and of the Supreme Court and it stated thus:
“… the major factor constituting an abuse of Court process is the existence of two different actions filed by a party to a suit either in the same or another Court on the same subject matter or seeking the same relief as the first suit against the same party. In other words, there must be the existence of a pending action in Court between the same parties on the same issue or subject matter and one of the parties proceeds to commence one or more other actions in another Court based on the same facts and circumstance before it can be termed as an abuse of Court process for being vexatious, irritating and intimidating to both the party and the Court.”

The lower Tribunal thereafter considered the process filed in the

Federal High Court and continued thus:
“It is abundantly clear and incontrovertible that the Petitioners are the plaintiffs before the Suit No FHC/ABJ/CS/295/2020. We have examined the Originating Summons emanating from the Federal High Court and the parties before this Tribunal, there is no cause to doubt, the parties are the same. The reliefs sought are equally the same. It is clear that the suit at the Federal High Court was earlier in time. The petition was filed later in time and a perusal of the reliefs show that they are same.
The attempt by Petitioners/Respondents Counsel … to draw a distinction was clearly an effort in futility. The Petitioners ought not have initiated both suits at the same time. It was sufficient that the Petitioners went to the Federal High Court to challenge the qualification of the 2nd Respondent before the election into the Babura/Garki Federal Constituency of Jigawa State was conducted. The suit was still competent and maintainable even after the election. The Petitioners’ right to seek redress on the same issue of qualification was activated soon after the declaration of result in favour of the 2nd

Respondent, however, it was incumbent on the Petitioners to withdraw the suit at the Federal High Court Abuja before seeking redress at the Election Tribunal, not doing so was a mistake. The commencement of this petition by the Petitioners against the Applicants/Respondents on the 3rd of April, 2020 during the pendency of the FHC Suit was a clear case of an abuse of this Tribunal’s process.”

Rather than borrow wisdom from this lucid reasoning of the lower Court, Counsel to the Appellants has come before this Court to canvass the same contentions he made before the lower Tribunal, perhaps with the hope that this Court will come to different conclusion. It is not in dispute that the issue of qualification of a candidate to contest an election is both a pre-election matter under Section 31 of the Electoral Act and a post-election matter under Section 138(a) of the Electoral Act. The question was – whether a party could pursue the question of qualification as a pre-election matter before the Federal High Court and as a pre-election matter before the Election Tribunal simultaneously? Apart from posturing, filibustering and genuflecting in the

brief of arguments, Counsel to the Appellants did not refer to a single case law authority or provision of a statute that empowered the Petitioners to pursue the question by filing and prosecuting simultaneous actions before the two Courts. Counsel did nothing to displace the thinking of the lower Tribunal and the case law authorities the lower Tribunal relied upon, apart from a perfunctory attempt at distinguishing the case of Dingyadi Vs INEC supra.

Kayili Vs Yilbuk (2015) 7 NWLR (Pt 1457) 26, Ude Vs State (2016) NWLR (Pt 1531) 122, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92. Where an appellant fails to show how the findings of a lower Court are perverse, the task of an appellate Court is simply to examine the findings made by a trial Court to ensure that they accord with settled position of the law, and where this is the case, not to interfere with the findings – Dada Vs Bankole (2008) 5 NWLR (Pt 1079) 26, Akaninwo Vs Nsirim (2008) 1 SC (Pt III) 219.

variety. It does not appear that the category can be closed. New unforeseen conduct from the stratagem of the plaintiffs can give rise to the abuse. An abuse may be constituted through a proper and legitimate conduct in bringing actions even in the exercise of an established right in the manner or time of instituting actions. It may be constituted by irregularities in the pursuit of actions.”
Perhaps the most firmly established practical example of abuse of process is instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues, or a multiplicity of action on the same matter between the same parties, even where there exists a right to begin the action – Jadesimi Vs Okotie-Eboh (1986) 1 NWLR (Pt 16) 264, Saraki Vs Kotoye (1992) 9 NWLR (Pt 264) 156, Jimoh Vs Starco (Nig) Ltd (1998) 7 NWLR (Pt 558) 523, Abubakar Vs Bebeji Oil and Allied Products Ltd (2007) 18 NWLR (Pt 1066) 319, Tomtec (Nig) Ltd Vs Federal Housing Authority (2009) 18 NWLR (Pt 1173) 358.
A common feature of all the cases on abuse of process is that the concept is the improper use of the judicial process by a party in

litigation to interfere with the efficient and effective administration of justice to the irritation and annoyance of his opponent. An abuse of process does not lie in the right to use a judicial process but rather in the manner of the exercise of the right. It consists of the intention, purpose or aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice; it is the inconveniences and inequities in the aims and purposes of the action – Saraki Vs Kotoye supra, Ogoejeofo Vs Ogoejeofo (2006) 3 NWLR (Pt 966) 205, Ali Vs Albishir (2008) 3 NWLR (Pt 1073) 94, Igbeke Vs Okadigbo (2013) 12 NWLR (Pt 1368) 225.
Thus, the fact that a party has a right to commence an action is irrelevant and immaterial in determining whether that action amounts to an abuse of process. What is relevant and material is whether the action is a multiple action of a pending suit on the same subject matter against the same opponent on the same issues, or a multiplicity of action on the same matter between the same parties. It is clear, in this case, that the Petition filed by the Appellants before the lower

Court was a multiple action of the case instituted and which was prosecuted before the Federal High Court, Abuja.
Counsel to the Appellants sought to distinguish the Petition from the action before the Federal High Court on the ground that the second Appellant, who had a right to also file the Petition, was not a party in the action before the Federal High Court. It is agreed that the first Appellant was the candidate of the second Appellant in the election in question. The law is that the interest of the first Appellant and that of the second Appellant in the election are the same and are subsumed into each other. The point was made by the Supreme Court in the case of Peoples Democratic Party Vs Peterside (2016) 7 NWLR (Pt 1512) 574, thus:
“This appeal has the same base as in the decision of the judgment of the Governorship Election Tribunal of 24th October, 2015 as the appeal number SC.1002/2015 between the same parties. Since the appellant in this appeal is the political party which sponsored the 4th respondent as its candidate to contest the Gubernatorial election in Rivers State whose interests are the same in the election, there is no

reason whatsoever in my view, that the parties would file and pursue separate appeals in this matter. This is because as far as the interest of the candidate and the political party sponsoring him are concerned, their interests in the election are not separate to justify the filing and pursuing separate processes in Courts.”
The present position of the law is that where the interests of the parties in a matter are the same and are subsumed into each other, the filing of separate actions by the parties to ventilate this same interest on the same subject matter and on same grounds against the same party amounts to an abuse of process – Bukoye Vs Adeyemo (2017) 1 NWLR (Pt 1546) 173, Guruyel Vs Bara (2018) LPELR 44399(CA). This, as stated earlier, is so irrespective of whether the party possesses an exercisable right of action because an abuse of process lies both in the proper use and improper use of the judicial process in litigation. The point was reiterated by the Supreme Court in Bukoye Vs Adeyemo supra thus:
“There is no iota of dispute that parties to any suit have unfettered right of appeal against the decision of the trial

Court to the Court below and even further to this Apex Court as provided by Section 246 and 233 of the Constitution of the Federal Republic of Nigeria 1979 and 1999 (as amended) (the Constitution for short) respectably. At any rate, it is my considered view that even though the Constitution provides right of appeal to any party aggrieved by decision of a Court, that does not however give such aggrieved party the right to abuse the process of the Court when exercising such right of appeal. It is trite law, that rights of appeal are exercised according to law, rules and procedures governing such appeal. In other words, it is incumbent upon the litigant to follow the law, rules and procedure governing the exercise of such right of appeal one of which is to guard against abusing the process of Court.”
Similar statements were made by the Supreme Court in the cases of Agbaje Vs Independent National Electoral Commission (2016) 4 NWLR (Pt 1501) 151, Ladoja Vs Ajimobi (2016) 10 NWLR (Pt 1519) 87. Thus, whichever way, the Petition filed by the Appellants before the lower Tribunal was a multiple action of the case before the Federal High Court. The Petition

was a perfect example of what constitutes an abuse of process.
The finding of the lower Tribunal that the Petition of the Appellants constituted an abuse of process is in consonance with the present position of the law and this Court has no reason to interfere with same. The first issue for determination is resolved in favour of the Respondents.

Issue Two
Whether, having regard to the pleadings and evidence led by the parties, the lower Tribunal was correct when it found and held that the Appellants did not make out a credible case in proof of their Petition.

This issue requires this Court to consider the merits of the Petition filed by the Appellants before the lower Court. Now, the law is that no matter how meritorious the case of a party may be, once it is found to be an abuse of process that is the end of the matter. It becomes a closed chapter and the end of the road for the matter. It must be dismissed – Arubo Vs Aiyeleru (1993) 3 NWLR (Pt 280) 125, African Re-Insurance Corporation Vs JDP Construction (Nig) Ltd (2003) 13 NWLR (Pt 838) 609, Dingyadi Vs Independent National Electoral Commission (No. 2)

(2011) LPELR 950(SC), Dogari Vs Waziri (2016) LPELR 40320(CA), Honeywell Flour Mills Plc Vs EcoBank (2019) LPELR 47503(CA). Thus, with the resolution of the first issue for determination in favour of the Respondents, the fate of this appeal is set; it will be dismissed.

This Court is the final Court in respect of the Petition of the Appellants against the return of the second Respondent as the elected Member of National Assembly representing Babura/Garki Federal Constituency of Jigawa State. Thus, the resolution of the second issue for determination serves no useful purpose. The opinion of this Court on the second issue for determination is not required for consideration by a higher Court, which would have been the case if this Court were not the final Court on the Petition of the Appellants. It is trite law that a Court has no business delving into the issues that are not crucial and which are merely theoretical and of no practical utilitarian value such that its determination makes no practical or tangible addition to the outcome of the case and pronouncing on it is an exercise in futility and cannot have any effect on the decision of the Court –Obi-Odu Vs Duke (No 2) (2005)

10 NWLR (Pt 932) 120, Agbakoba Vs Independent National Electoral Commission (2008) 18 NWLR (Pt 1119) 489, Doma Vs Independent National Electoral Commission (2012) 13 NWLR (Pt 1317) 297, Independent National Electoral Commission Vs Atuma (2013) LPELR-20589(SC). This postulation is premised on the fact that Courts of law are set up to determine live issues which will have bearing in one way or the other on the outcome of a case – Oyeneye Vs Odugbesan (1972) 4 SC 244, Bhojwani Vs Bhojwani (1996) 6 NWLR (Pt 457) 663, Mamman Vs Salaudeen (2005) 18 NWLR (Pt 958) 478, State Vs Azeez (2008) 14 NWLR (Pt 1108) 348, Abdullahi Vs Military Administrator, Kaduna State (2009) 15 NWLR (Pt. 1165) 417. Considering and pronouncing on the second issue for determination will be a wasteful exercise in the circumstances of this appeal and this Court declines to do so.

Before concluding this appeal, this Court considers it pertinent to comment on an aspect of this case which it finds intriguing and worrying. Counsel to the first Respondent stated in his brief of arguments that the action before the Federal High Court Abuja in Suit No FHC/ABJ/CS/295/2020 was heard on the

merit and decided by that Court on the 16th of June, 2020 and that the Court dismissed the case first Appellant questioning the qualification of the second Respondent to contest the election. The first Appellant was dissatisfied with the decision and he appealed to the Court of Appeal, Abuja in Appeal No CA/ABJ/CV/498/2020 and the appeal was heard on the merit and dismissed by that Court on 21st of August, 2020 and the Court affirmed the decision of the Federal High Court. The first Appellant has further appealed to the Supreme Court as Appeal No SC.627/2020 and this appeal is pending and awaiting resolution by the Supreme Court. All these happened during the pendency of the Petition in the lower Tribunal. These facts were not denied or countered by Counsel to the Appellants and this Court has not been given any reason to doubt them.

In the light of these facts, something is definitely not right with the insistence of the Appellants and of their Counsel in continuing to pursue this appeal to canvass the same issues that have already been determined by the Court of Appeal, Abuja and which are presently before the Supreme Court to decide upon. Common sense

dictates that the Appellants and their Counsel would have let this matter rest with the decision of the lower Tribunal and focused their energy on pursuing the appeal in the Supreme Court in the other matter. It is only a mind or a brain that abhors new knowledge or new understanding or one that is egoistic and highly self-opinionated and believes that it is always right, and others are wrong, or, further, one that is selfish and very self-centered; that does not care about bringing down established systems and procedures, so long as it gets what it wants, that will ignore this dictate of common sense, in the circumstances.

Better still, perhaps it is the mind of a Counsel that sees pursuing this appeal as an opportunity for it to amass, through a quicker route, the appellate Court cases needed for an application for the rank of Senior Advocate of Nigeria that drove the prosecution of this appeal. Whatever might be the motive, the filing and insistent prosecution of this appeal by the Appellants and their Counsel, in the circumstances of this case, is totally irresponsible, reckless and a downright abuse of the processes of this Court. In other climes,

the Counsel and the law firm that filed the appeal would have been cited for professional misconduct, with possible punishment including withdrawal of practice licence. It is cases of this nature that seek to put different divisions of the Court of Appeal, or the Court of Appeal and the Supreme Court, into direct conflict with each other that bring disrepute to the administration of justice system. Counsel must learn to subsume self-interest for the common good of the justice system.

In conclusion, this Court finds no merit in the appeal and it is hereby dismissed. The ruling on preliminary objection and the judgment of the National and State Houses of Assembly Election Petition Tribunal sitting in Dutse, Jigawa State delivered in Petition No EPT/JG/NASS/REP/01/2020 by the Chairman and the Honorable Members of the Tribunal on the 31st of August, 2020 are affirmed. The Respondents are awarded the costs of this appeal in the sum of N100,000.00 each. These shall be the orders of the Court.

ABUBAKAR DATTI YAHAYA, J.C.A.: I read before now, the leading Judgment of my learned brother Abiru JCA just delivered. He has in his

characteristic manner, ably and lucidly resolved all the issues raised for determination. It is clear that the Appellants had instituted a multiplicity of action in different Courts on the same facts, thus constituting an abuse of the process of Court. Their action centred on the improper use of the judicial process, interfering with administration of justice, and vexatious to the annoyance of the Respondents -ALLANAH & ORS. VS. KPOLOKWU & ORS. (2016) LPELR — 40724 (SC) at pages 13-14; and OGBORU & ANOR VS. UDUAGHAN & ORS. (2013) LPELR – 20805 (SC),

When a Court finds a case to be an abuse of process, its merit is not in issue. It amounts to a fundamental defect for which the only result is for the Court to invoke its coercive powers to dismiss the abused process. See ADESANOYE VS. ADEWOLE (2000) 9 NWLR (PT. 671) 127; DINGYADI VS. INEC (NO.2) 2011 18 NWLR (PT. 1224) 154 AND AGWASIM VS. OJICHIE (2004) 10 NWLR (PT. 882) 613 AT 625, I too find no merit and I dismiss it. The case had clogged the Courts at the expense of other deserving cases.
I abide by the Order as to costs.

AMINA AUDI WAMBAI, J.C.A.: I read before now the draft copy of the lead judgment just delivered by my learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU, JCA. I agree entirely that the concurrent pursuit of the election petition filed by the Appellants at the lower Tribunal with the suit at the Federal High Court on the same issue between the same parties for virtually the same reliefs constitutes an abuse of process. Not only that, instituting this appeal after the dismissal of a similar appeal on 21/08/2020 by the Abuja Division of this Court in Appeal No. CA/ABJ/CV/498/2020 is not only abusive, vexations, and oppressive but highly reprehensible and amounts to forum shopping in search of a favourable Court where he would succeed. See DINGYADI VS. INEC (2010) 18 NWLR (PT. 1224). In YAR’ADUA & ORS. VS. ATIKU ABUBAKAR & ANOR (2008) 18 NWLR (PT. 1120) 236, the Supreme Court made the point very clear that it is an abuse of Court process for a party to re-litigate an identical issue which has been decided against him by a Court of competent jurisdiction. This is exactly what the Appellant has done in this appeal. Such a deprecating act by the Appellant attracts the coercive and

punitive order of the Court for a dismissal of the process constituting the abuse, in this case, both the election petition giving rise to this appeal, and the present appeal before this Court. The lower Tribunal was therefore right in upholding the Preliminary Objection and dismissing the petition as an abuse of its process. This appeal thus has no merit and I too dismiss same. I abide by the order as to cost in the leading judgment.

Appearances:

O. Amedu For Appellant(s)

Bashir M. Abubakar, with him, Hassan Aminu and F. Z. Shehu – for the 1st Respondent
A. M. Karaye – for the 2nd Respondent
Abdul Adamu, with him, U. S. Salihu and T. M. Bello – for the 3rd Respondent For Respondent(s)

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