GPN & ORS v. INEC
(2022)LCN/16755(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, March 30, 2022
CA/ABJ/CV/143/2022
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Between
1. GREEN PARTY OF NIGERIA 2. HON. ANASO ALEXENDER CHIZOBA 3. AWYAORA GODWIN EBERECHUKWU APPELANT(S)
And
INDEPENDENT NATIONAL ELECTORAL COMMISSION RESPONDENT(S)
RATIO
WHETHER OR NOT DECLARATORY RELIEFS CAN BE GRANTED IN THE ABSENCE OF EVIDENCE FROM THE PLAINTIFF
Now, it is apparent that the principal or main reliefs sought in the Court below by the Originating Summons are declaratory in nature. Reliefs (iii), (iv) and the alternative relief (v) are contingent upon the success of declaratory reliefs sought. It has always been the law that, in an action for declaratory reliefs, the onus remains always on the plaintiff who seeks the relief to adduce cogent, credible and satisfactory evidence that will entitle him to the relief sought. That being so, a declaratory relief cannot be granted in the absence of evidence from the plaintiff. Thus, even, if the defendant abstains from filing a defence, the plaintiff will not be entitled to the declaration, if he fails to adduce evidence or where he adduces evidence but such evidence is not cogent and/or credible. Therefore, an admission by the defendant might not be sufficient to entitle him to the declaration sought. However, circumstances might arise where the plaintiff might rely on an aspect of the defence which supports his case. The bottom line is that, a declaratory relief cannot be granted in the absence of evidence. The burden to be discharged is on the balance of probabilities or preponderance of evidence. See Ayanwale v. Odusami (2011) 18 NWLR (Pt. 1278) 328 at 341, C.P.C. v. INEC (2012) 1 NWLR (Pt. 1280) 106 at 131, Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205 and Okereke v. Umahi (2016) 11 NWLR (Pt. 1524) 438. Thus, in Ifediora v. Okafor (2019) 16 NWLR (Pt. 1698) 322 at 341 paras. E – G, the Supreme Court held that:
“Declaratory reliefs are not granted even on admission. The plaintiff seeking such reliefs must prove and succeed on the strength of his case and not rely on the weakness of the defence. The burden of proof on the plaintiff in establishing declaratory relief to the satisfaction of the Court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlement to the declaration by his own evidence. The Court does not make declarations of right either on admission as in default of defence without having evidence and being satisfied by such evidence to the plaintiff’s entitlement to such right…” PER TSAMMANI, J.C.A.
THE POSITION OF LAW ON WHERE A DECISION OF COURT IS SAID TO BE PERVERSE
A decision of the Court would be held to be perverse where the trial Court fails to draw from the evidence on record; or where the trial Court relied on extraneous facts not supported by the evidence on the record. It will be said to be perverse, where the trial Court wrongly applied legal principles to the ascertained facts or applied the wrong legal principles of law to the ascertained facts. See Obajimi v. Adediji (2008) 3 NWLR (Pt. 1075) 1 at 19, John Bhoy Int. Ltd. v. AEPB (2013) 8 NWLR (Pt. 1357) 625 at 640, Olaniyan v. Fatoki (2013) 17 NWLR (Pt. 1384) 477 at 492 and Atolagbe v. Shorun (1985) LPELR – 592 (SC). PER TSAMMANI, J.C.A.
WHETHER OR NOT DECISIONS OF COURT NOT APPEALED AGAINST ARE VALID
There is no appeal against that finding of the trial Court. It is settled law that, findings and or orders of a lower Court which are not appealed against, remain valid and subsisting. In other words, where a finding of Court is not challenged on appeal, such finding, whether wrong or right, remain correct and the parties are bound by such finding. See Ebenighe v. Chi (2011) 2 NWLR (Pt. 1230) 65; NBCI v. Integrated Gas (Nig.) Ltd. (2005) 4 NWLR (Pt. 916) 617; Michael v. State (2008) 13 NWLR (Pt. 1104) 361; Udom v. E. Micheletti & Sons Ltd. (1997) 8 NWLR (Pt. 516) 187 and Yusuf Jimoh v. Karimu Akande (2009) LPELR- 8087(SC). Thus, in Oyo State Paper Mills Ltd. & Ors. v. Nibel Co. (Nig.) Ltd. (2017) 3 NWLR (Pt. 1552) 201, this Court held that:
“It is trite law that, any finding of the Court for which there is no appeal, is deemed conceded to and therefore established.” PER TSAMMANI, J.C.A.
THE CONCEPT OF ABUSE OF COURT PROCESS
The concept of abuse of Court process is premised on the need to have an end to litigation, and to avoid chaos in the judicial environment. Where abuse of Court process is alleged, it means that the process of the Court has not been used bonafide and properly, and therefore frivolous, vexatious and oppressive. The common feature of abuse of Court process is the improper use of judicial process by a party in litigation aimed or targeting on interference with due administration of justice. The features of abuse of judicial process are:
(a) Filing of multiplicity of actions on the same subject matter against the same opponents on the same issues or numerous actions on the same matter between the same parties even where there is in existence, a right to commence the action.
(b) Instituting different actions between the same parties simultaneously in different Courts even though on different grounds.
(c) Where two or more similar processes are used in respect of the exercise of the same right, for instance, a cross-appeal and a respondent’s notice; and
(d) Where two actions are instituted Coured in t, the second one asking for relief which may however be obtained in the first, the second action is, prima facie vexatious and therefore an abuse of Court process.
Above, are some of the instances where a Court process may amount to an abuse. In other words, what may or may not amount to abuse of a judicial process, will depend on the facts and circumstances of each case. See Alphonsus Ukanna & Ors. v. Nigerian Security Printing & Minting Plc. (2018) LPELR – 51206 (CA), Ogoejeofo v. Ogoejeofo (2006) 3 NWLR (Pt. 996) 206, Okorocha v. PDP (2014) 7 NWLR (Pt. 1406) 213, African Continental Bank Plc. V. Nwaigwe & Ors (2011) 7 NWLR (Pt. 1246) 380 and Oyeyemi & Ors v. Owoeye & Anor. (2017) LPELR-41903 (SC). PER TSAMMANI, J.C.A.
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal was initiated by a Notice of Appeal filed on the 31st day of January, 2022 against the judgment of the High Court of the Federal Capital Territory delivered on the 19th day of January, 2022 in Suit No: FCT/HC/CV/1809/2021.
By an Originating Summons which was filed in the Court below, the Appellants as Plaintiffs beseeched the Court to answer the following questions:
1. Whether the defendant; Independent National Electoral Commission has the power to reject and/or fail to publish any candidate of a political party brought for submission not later than 60 days before the date appointed for general election vis-a-vis the provision of Section 31(1) of the Electoral Act, 2010 as amended.
2. Whether the non-publication of the Governorship candidate of the claimant in Anambra State by the defendant is not ultra-vires the power of the defendant by virtue of Section 31(1) of the Electoral Act, 2010 (as amended).
3. Whether the Defendant is right in not publishing the name of the 2nd and 3rd claimants as governorship candidate of the 1st claimant for the Anambra State Governorship election scheduled on the 6th November, 2021 vis-a-vis the judgment of the Court of Appeal in the case of ACD & 2 Ors. v. AGF & Anor with Appeal No: CA/ABJ/CV/507/2020, delivered on the 10th day of August, 2020, delivered on the 10th day of August, 2020.
The Plaintiff’s/Appellants then prayed, that if the above questions are resolved in their favour, they be granted the following reliefs:
i. A DECLARATION that the non-publication of the Governorship candidate (Hon. Anaso Alexander Chizoba and his Deputy) is ultra-vires the power of the defendant and in breach of Section 31(1) of the Electoral Act, 2020 (as amended) and as such null and void.
ii. A DECLARATION that the defendant; the Independent National Electoral Commission has no power to reject the 2nd and 3rd Claimants the Governorship candidate and his Deputy of the 1st Claimant in Anambra State.
iii. AN ORDER of the Honourable Court directing and/or mandating the Defendant to accept and include the names of the 2nd and 3rd Claimants as Governorship candidate and Deputy of the 1st Claimant in Anambra State for the forth-coming election scheduled to hold on the 6th day of November, 2021.
iv. AN ORDER of the Honourable Court directing and/or mandating the defendant to include and publish names of the 2nd and 3rd Claimants in the ballot papers as candidate of the 1st claimant in Anambra State.
v. OR in the alternative to pay the Claimants the sum of N2,000,000,000.00 (Two Billion Naira) only for unlawful rejection and/or non-publication of the Governorship candidate and deputy governor of the 1st claimant in Anambra State in the 2021 Governorship election.
The Originating Summons was supported by an Affidavit of 12 paragraphs to which were annexed Exhibits GPN1 – GPN3. Same was accompanied by a Written Address in support. The Defendant/Appellant in opposition to the Originating Summons filed a Counter-Affidavit and a Written Address. In reply, the Plaintiffs/Appellants filed a Further Affidavit and a Written Reply Address on Points of Law. After hearing the parties, the trial Court dismissed the claims as set out in the Originating Summons. Being vexed by the judgment, the Appellants have filed this appeal.
The Notice of Appeal which was filed on the 31/01/2022 consists of five (5) Grounds of Appeal. Parties then filed and exchanged briefs of arguments as required by Order 19 of the Rules of this Court. The Appellants’ Brief of Arguments which was settled by Afamefuna Okeke; Esq was filed on the 28/2/2022. Therein, three (3) issues were raised for determination as follows:
1. Whether having regard to the facts and circumstances of the pending appeal at the Supreme Court in Appeal No: SC/CV/485/2020 and the decision of the Court of Appeal in Appeal No: CA/ABJ/CV/507/2020, this suit is a fresh action on the same subject matter, caught by the doctrine of lis pendens and constitutes and abuse of Court process. (Distilled from Grounds 1 & 2).
2. Whether the learned trial Judge misconstrued the status quo of the matter at the Supreme Court in SC/CV/485/2020 thereby occasioning injustice to the Appellants when he held that the Appellants were bound to maintain status quo pending the determination of the appeal filed by the Respondent at the Supreme Court. (Distilled from Ground 3).
3. Whether having regard to the facts and evidence placed before the lower Court, the Judgment of the lower Court is supported by evidence. The Respondent’s Brief of Arguments was filed on the 4/3/2022. The issues distilled by the Appellants were adopted by the Respondent as the issues arising for determination in this appeal. That being so, the issues distilled by the Appellants are the issues I have decided to adopt for the determination of this appeal. I shall however, consider them together. I need to remind myself that on the 10/3/2022, the Appellants filed an Appellants’ Reply Brief.
Now, on issue one (1), learned counsel for the Appellants contended that the present action does not constitute an abuse of Court process as the subject matter of the suit is in no way related to the subject matter of the appeal commenced by the Respondent at the Supreme Court in SC/CV/845/2020. On what constitutes abuse of Court process, learned counsel cited the case of Central Bank of Nigeria v. Ahmed (2001) 11 NWLR (Pt. 724) at 409, and to also submit that, a reading of the Judgment of this Court in CA/ABJ/CV/507/2020 delivered on the 10/8/2020 (now subject of appeal before the Supreme Court), show that the subject matter and the reliefs sought are not the same as in the instant case. That, the subject matter of Appeal No: SC/CV/845/2020 is in respect of deregistration of the 1st Appellant amongst other political parties by the Respondent. That the questions posed before the Supreme Court in SC/CV/845/2020 did not make any reference nor is there any pronouncement put forward for determination relating to the subject matter of this suit.
Learned counsel for the Appellants then cited the case of Ehinle v. Ikorodu Local Gov’t. (2021) 1 NWLR (Pt. 1757) 279 at 304 to submit that, in the determination of an action before a Court, the parties and the Court are bound by the reliefs claimed. That in the instant case, the reliefs sought by the Appellants in the Originating Summons is that the Respondent refused to recognize and register the 2nd and 3rd Appellants as the gubernatorial candidates of the 1st Appellant for the Anambra State gubernatorial election that was scheduled to hold on the 06/11/2021. Learned counsel then contended that, the questions for determination and the reliefs sought in the instant suit are not the same with those litigated and determined by this Court in CA/ABJ/CV/507/2020; and which is now on appeal before the Supreme Court as Appeal No: SC/CV/845/2020. The case of Umeh v. Iwu (2008) 8 NWLR (Pt. 1089) 225 was also cited in support.
Learned counsel for the Appellants went on to submit that, on the strength of judicial authorities, the instant case, contrary to the decision of the trial Court, is not an abuse of Court process because the subject matter and the issues are not the same. We were also urged to hold that, the postulation of the trial Court that this present suit is a fresh action on the same subject matter is unfounded based on the facts and evidence before the trial Court.
On the applicability of lis pendens, learned counsel insisted that the Appeal No: SC/CV/485/2020 is distinct from the subject of the instant suit, therefore, the doctrine of lis pendens is not applicable. The case of Rt. Hon. Rotimi Chibuike Amaechi v. Independent National Electoral Commission & Ors (2008) LPELR-446 (SC) was cited in support. That, in the instant case, there is neither a transfer of right or interest from the Respondent to the Appellants nor any proven steps taken by the Appellants capable of foisting a state of helplessness on the Respondent. Rather, that the gravamen of the instant suit is that the Appellants seek to enforce their rights as a duly registered political party to be recognized and the names of the 2nd and 3rd Appellants published as contestants in the Anambra State Gubernatorial election based on the subsisting judgment of the Court of Appeal in Appeal No: CA/ABJ/CV/507/2020.
On issue two, learned counsel for the Appellants submitted that, the learned trial Judge misconstrued the status quo applicable to the appeal before the Supreme Court. That, the judgment of this Court, which is now pending before the Supreme Court, clearly declared the de-registration of the 1st Appellant as illegal and set same aside, and that, that judgment remains subsisting until set aside. The case of Kubor v. Dickson (2013) 4 NWLR (Pt. 1345) 534 at 547-548 was cited in support, and to further submit that, the trial Court failed to appreciate the fact that the judgment of the Court of Appeal in CA/ABJ/CV/507/2020, which is now on appeal before the Supreme Court was in favour of the 1st Appellant as regards its de-registration by the Respondent. That, in the circumstances, the status quo of the Judgment being appealed against is that, the 1st Appellant remains a duly registered political party in Nigeria, unless set aside by the Supreme Court. The case of Babington-Ashaye v. E. M. A. G. (Nig.) Ltd. (2011) 10 NWLR (Pt. 1256) 479 at 506 was also cited in support.
Learned counsel for the Appellant went on to submit that, in the absence of any injunction or stay of execution pending the determination of the appeal by the Supreme Court, the judgment of the Court of Appeal in CA/ABJ/CV/507/2020 represents the status quo as same remains’ valid and subsisting. That, if the status quo is in favour of the 1st Appellant, then, the trial Court misapplied the law, thereby denying the Appellants their rights as a duly registered political party. It is thus submitted that, if the trial Court had taken judicial notice of the valid and subsisting judgment of this Court which is now on appeal before the Supreme Court, it would have arrived at a different position.
On issue three (3), learned counsel for the Appellants contended that, the reliefs gleaned from the Originating Summons filed in this suit is that, the Respondent refused to recognize and register the 2nd and 3rd Appellants as the Gubernatorial candidates of the 1st Appellant for the Anambra State Gubernatorial election that was scheduled to hold on 06/11/2021, whereas the gravamen of Appeal No: SC/CV/845/2020 is on the legality of the de-registration of the 1st Appellant as a political party. That, the 1st Appellant had informed the Respondent of its intention to conduct its primary election and nominate candidates for the 6th day of November, 2021 Anambra State Gubernatorial election. That, despite the several materials placed before the Respondent, the trial Court did not appreciate the issues placed before for determination.
The cases of Rt. Hon. Rotimi Chibuike Amaechi v. Independent National Electoral Commission & Ors. (2008) LPELR-446 (SC); Metal Construction (W/A) Ltd. v. D. A. Migliore (1990)1 NWLR (Pt. 126) 299; Obulor v. Oboro (2001)8 NWLR (Pt.714) 25 at 32 and Efunwape Okulate & Ors v. Gbadamosi Awosanya & Ors. (2000) LPELR- 2529 (SC) were then cited to further submit that, it is elementary principle of law that, the judgment or decision of a Court must be supported by evidence. That in the instant case, the learned trial Judge ignored the facts and evidence before him and thereby misconceived the thrust of the case presented by the Appellants. Particularly, that the findings of the learned trial Judge are not supported by the evidence. We were accordingly urged to resolve the three issues in favour of the Appellants, and thus allow the appeal.
In response, learned counsel for the Respondent submitted that, the law is trite that, he who asserts must prove. That in law, in an action for declaration of rights, the plaintiff has the onus to lead credible evidence in proof of the claim. This is because, in a claim for declaration of rights, the plaintiff must succeed on the strength of his case and not on the admission or weakness of the defence. The case of Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 was cited in support. It was then contended that, the 1st Appellant and 21 other political parties instituted an action at the Federal High Court against their de-registration by the Respondent. That, the suit was dismissed and the de-registration upheld. The 1st Appellant and the other 21 political parties appealed to the Court of Appeal in Appeal No: CA/ABJ/CV/507/2020, and the appeal succeeded in part on the ground that, the reasons for the de-registration was never communicated to the political parties so de-registered, including the 1st Appellant. That, the issue is on further appeal before the Supreme Court as Appeal No: SC/CV/485/2020.
Learned counsel for the Respondent then cited the cases of Registered Trustees of Apostolic Church v. Olowoleni (1990) 4 NWLR (Pt. 158) 514, Nig. Navy v. Garrick (2006) 4 NWLR (Pt. 969) 163 and Agbai & Ors v. Okogbue (1991) LPELR – 225 (SC) to submit that, once parties have submitted their disputes to the Court for determination, none of them is allowed to do or take any action that would overreach the interest of the other party or foist a situation of complete helplessness; or fait accompli on the Court. That both parties are expected to await the result of the litigation to finality; and that, where a party is aware of a pending Court process, irrespective of whether an injunctive order has been given or not, the parties are bound to maintain the status quo. That in the instant case, the Respondent has shown by Exhibit 2 that it has appealed against the judgment of this Court, which imply that the issue appealed against is lis pendis. Furthermore, that once an appeal is lodged against a decision, all parties are required not to take any step, so as not to impose a fait accompli on any decision the Court might reach. The cases of Odedo v. INEC (2008) 17 NWLR (Pt. 1117) 554, Plateau State v. A. G and Federation (2006) 3 NWLR (Pt. 967) 246 were cited in support.
Learned counsel for the Respondent went on to submit that, the fear of Respondent (Appellant before the Supreme Court) is that, implementing an aspect of the judgment of the Court of Appeal has the tendency of rendering its appeal at the Supreme Court academic because, the issue sought to be determined would have been spent before the hearing and delivery of judgment by the Supreme Court. That, it is part of the decision reversing the de-registration of the 1st Appellant as a political party that is on appeal at the Supreme Court, thereby requiring the parties to maintain the status quo.
Learned counsel for the Respondent also submitted that, the Appellant’s suit at the trial Court was not for the enforcement of the judgment of this Court as the judgment of this Court was delivered on the 10/8/2020 while the instant action was instituted on the 27/7/2021 when a valid appeal was pending at the Supreme Court. The cases of Ogbonna v. President FRN (1997) 5 NWLR (Pt. 504) at 251 and A.G and Federation v. ANPP (2003) 18 WNRL (Pt.821) at 182 were then cited to further submit that, the pendency of the appeal at the Supreme Court required that all parties to the dispute maintain status quo, so as not to impose on the Supreme Court, a fait accompli. The cases of Egwe Oyibo Okoye v. INEC & Ors (2010) LPELR – (CA), Governor of Lagos State v. Chief Ojukwu (1986) 1 NWLR (Pt. 68) at 621, Chief Okoya & Ors v. Santili & Ors (1991) 7 NWLR (Pt. 206) 753, UBN (Nig.) Plc. V. Alhaji Adams Ajabule & Anor (2011) LPELR – 8239 (SC) and Abiodun v. C. J. Kwara (2007) 18 NWLR (Pt. 1065) at 109 were further cited in support, and to urge us to dismiss the appeal.
Learned counsel for the Appellants filed a Reply Brief of Arguments. I have cautiously considered the arguments made in the said Reply Brief. The arguments therein are substantially on issues made in passing in the Respondent’s Brief of Arguments and not seriously canvassed as issues to be determined in the appeal. I have not and do not wish to consider them in the determination of the germane issues raised by the Appellants in this appeal. The other issues appear to be re-arguments of what had been canvassed in the Appellants Brief and responded to by the Respondent. That is not the purpose of a Reply Brief; and therefore will not be taken into account in the determination of this appeal. See Order 19 Rule 5(2) of the Court of Appeal Rules, 2021.
Now, it is apparent that the principal or main reliefs sought in the Court below by the Originating Summons are declaratory in nature. Reliefs (iii), (iv) and the alternative relief (v) are contingent upon the success of declaratory reliefs sought. It has always been the law that, in an action for declaratory reliefs, the onus remains always on the plaintiff who seeks the relief to adduce cogent, credible and satisfactory evidence that will entitle him to the relief sought. That being so, a declaratory relief cannot be granted in the absence of evidence from the plaintiff. Thus, even, if the defendant abstains from filing a defence, the plaintiff will not be entitled to the declaration, if he fails to adduce evidence or where he adduces evidence but such evidence is not cogent and/or credible. Therefore, an admission by the defendant might not be sufficient to entitle him to the declaration sought. However, circumstances might arise where the plaintiff might rely on an aspect of the defence which supports his case. The bottom line is that, a declaratory relief cannot be granted in the absence of evidence. The burden to be discharged is on the balance of probabilities or preponderance of evidence. See Ayanwale v. Odusami (2011) 18 NWLR (Pt. 1278) 328 at 341, C.P.C. v. INEC (2012) 1 NWLR (Pt. 1280) 106 at 131, Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205 and Okereke v. Umahi (2016) 11 NWLR (Pt. 1524) 438. Thus, in Ifediora v. Okafor (2019) 16 NWLR (Pt. 1698) 322 at 341 paras. E – G, the Supreme Court held that:
“Declaratory reliefs are not granted even on admission. The plaintiff seeking such reliefs must prove and succeed on the strength of his case and not rely on the weakness of the defence. The burden of proof on the plaintiff in establishing declaratory relief to the satisfaction of the Court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlement to the declaration by his own evidence. The Court does not make declarations of right either on admission as in default of defence without having evidence and being satisfied by such evidence to the plaintiff’s entitlement to such right…”
Where evidence has been led, the duty of the Court, being the Court of first instance, is to evaluate and ascribe probative or evidential weight to such evidence. The Court does that by placing the evidence led on opposite sides of an imaginary scale of justice; and whichever side the weight of evidence preponderates, will have the judgment of the Court. Thus, if the imaginary scale tilts to the side of the plaintiff, judgment will be in his favour, otherwise, his case will be dismissed. The dismissal of the plaintiff’s case will not translate to judgment being given to the defendant, unless such defendant has filed a counter-claim. See Mogaji & Ors v. Odofin & Ors (1978) 4 SC 91 at 93; Ezechukwu & Anor v. I.O.C. Onwuka (2016) LPELR – 26055 (SC), Abisi & Ors v. Ekwealor & Anor (1993) LPELR-44(SC) and Iliya Akwai Lagga v. Audu Yusuf Sarhuna (2008) LPELR – 1740 (SC). Thus, in Chief Falade Onisaodu & Anor v. Elewuju & Anor (2006)13 NWLR (Pt. 998) 517, the Supreme Court, per Katsina-Alu, JSC (as he then was) cited and relied on the case of Mogaji & Ors v. Odofin & Ors (supra), where it was held that:
“In short, before a Judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier, not by the number of witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities.”
Where the trial Court has taken advantage of the benefit of hearing, seeing and observing the witnesses as they testified him, by properly, efficiently and effectively evaluating the evidence adduced before, this Court will not interfere. This Court will only interfere where the trial Court shirked in the performance of that sacred duty; or the evaluation and findings led to a perverse decision or injustice.
A decision of the Court would be held to be perverse where the trial Court fails to draw from the evidence on record; or where the trial Court relied on extraneous facts not supported by the evidence on the record. It will be said to be perverse, where the trial Court wrongly applied legal principles to the ascertained facts or applied the wrong legal principles of law to the ascertained facts. See Obajimi v. Adediji (2008) 3 NWLR (Pt. 1075) 1 at 19, John Bhoy Int. Ltd. v. AEPB (2013) 8 NWLR (Pt. 1357) 625 at 640, Olaniyan v. Fatoki (2013) 17 NWLR (Pt. 1384) 477 at 492 and Atolagbe v. Shorun (1985) LPELR – 592 (SC).
Now, in determining the issue, the learned trial Judge made findings and held at page 188 lines 17 – 189 line 4 of the Record of Appeal as follows:
“There is no controversy on the evidence of the parties. The plaintiffs did not deny their involvement in the class action before the Federal High Court leading to an appeal before the Court of Appeal and subsequently to the appeal before the Supreme Court in SC/CV/485/2020 between Independent National Electoral Commission and Advanced Congress of Democrats & 21 Ors. There is also no dispute that the Appeal has not been decided by the Apex Court. It is clear that the decision of the Court of Appeal is favourable to the Appellants in that case, including the Plaintiff in this case.
The instant action by the Plaintiffs is not an enforcement procedure aimed at actualizing the dictates of the judgment of the Court of Appeal. The judgment of the Court of Appeal was delivered on 10th August, 2020. The Plaintiffs filed the instant application before this Court on 27th July, 2021, as at 8th February, 2021 the Respondent in the appeal had lodged an appeal against the decision of the Court of Appeal. The appeal to the Supreme Court was lodged before the filing of the instant Originating Summons. As earlier observed, the instant application is not for the purpose of enforcement of the Orders of the Court of Appeal….” The learned trial Judge then referred to the reliefs sought by the Plaintiffs/Appellants herein, to further hold at page 189 line 30 – 190 line 13 of the record of appeal as follows:
“It is obvious that prayers 3 and 4 above have been overtaken by event, the said election slated for 6th November, 2021 has been conducted and concluded and it is trite that a Court of law will not make any order in vain, or make an unenforceable order. In Bulunkutu vs. Zangina (1997) 11 NWLR (Pt. 529) 526 at 539 – 540, the Supreme Court held that:
“Courts should desist from making orders in vain and not make orders that are impossible to be obeyed or implemented. See also C.C. B. Nig. Plc. V. Okpala (1997) 8 N. W. L. R. (Pt. 518) 673 at 694.”
In the light of the above decision of the Apex Court, this Court finds that the prayers in 3 and 4 above are impossible to be implemented if at all there is any merit in the totality of the instant application.”
Clearly, the learned trial Judge held that prayers 3 and 4 made by the Appellants have been overtaken by events since the election the Appellants sought to participate in had been conducted. That in the circumstances, those reliefs sought, even if granted, will be impossible to implement. There is no appeal against that finding of the trial Court. It is settled law that, findings and or orders of a lower Court which are not appealed against, remain valid and subsisting. In other words, where a finding of Court is not challenged on appeal, such finding, whether wrong or right, remain correct and the parties are bound by such finding. See Ebenighe v. Chi (2011) 2 NWLR (Pt. 1230) 65; NBCI v. Integrated Gas (Nig.) Ltd. (2005) 4 NWLR (Pt. 916) 617; Michael v. State (2008) 13 NWLR (Pt. 1104) 361; Udom v. E. Micheletti & Sons Ltd. (1997) 8 NWLR (Pt. 516) 187 and Yusuf Jimoh v. Karimu Akande (2009) LPELR- 8087(SC). Thus, in Oyo State Paper Mills Ltd. & Ors. v. Nibel Co. (Nig.) Ltd. (2017) 3 NWLR (Pt. 1552) 201, this Court held that:
“It is trite law that, any finding of the Court for which there is no appeal, is deemed conceded to and therefore established.”
It therefore remains established that prayers 3 and 4 which sought the order of the trial Court, mandating the Respondent to accept and include the canditure of the 2nd and 3rd Respondents in the Governorship Election of Anambra State, which was conducted on the 6th day of November, 2021 is not grantable. The election having been conducted and results declared, it would have been impossible to implement if granted. I wish to state, advisedly though, that the proper thing for the Appellants would have been to approach the Election Petition Tribunal and seek the appropriate remedy.
Now, in respect of the declaratory reliefs sought, the learned trial Judge held at page 190 lines 14 – 23 of the record of appeal as follows:
“On the issues canvassed in the whole of this application, I have earlier observed that parties have litigated the issues before the Federal High Court, the Court of Appeal and are currently before the Supreme Court awaiting the decision of the Apex Court. The facts admitted in the affidavit of claimants quoted above. As earlier noted, the instant case is not for the enforcement of the orders granted to the claimants in the judgment of the Court of Appeal dated 10th August, 2020. It is fresh action on the same subject matter. There is no provision for such procedure in our jurisprudence. In Mohammed vs. Olawunmi (1993) 4 NWLR (Pt. 287) 254 at 278 – 279, it was held that:
“Where there is an appeal before the Supreme Court as in the instant case, a decision by the High Court which will render the result of the Appeal nugatory should be avoided. In African Continental Bank Plc. V. Nwaigwe (2011) 7 NWLR (pt. 1246) 390 – 393, it was held per Onnoghen, JSC that to constitute an action during the pendency of another one claiming the same reliefs amount to an abuse of process of Court. It does not matter whether the matter is an appeal or not for as long as the previous action has not been finally decided, the subsequent action constitutes an abuse of process of the Court.”
The learned trial Judge then concluded at pages 191 – 192 of the record of appeal as follows:
“In the instant case, the 1st claimant is one of the parties in the earlier case before the Federal High Court, Court of Appeal and now awaiting the decision of the Supreme Court. The 1st claimant while still before the Supreme Court in an appeal in the class action unilaterally came before this Court for a fresh determination of the same issues…
Therefore, once a party is aware of a pending Court process and whether the Court has not given a specific injunctive order or not, parties are bond to maintain status quo pending the determination of the Court process. They should in no account resort to self-help. Whenever such situation arises, the Court must invoke its disciplinary jurisdiction to curb the excesses of a recalcitrant party. The instant case is a clear case of abuse of the process which is condemnable… This case is in the circumstances ordered dismissed.”
Apparently, the learned trial Judge dismissed the Plaintiffs/Appellants’ claims on the ground that it was an abuse of Court process. The concept of abuse of Court process is premised on the need to have an end to litigation, and to avoid chaos in the judicial environment. Where abuse of Court process is alleged, it means that the process of the Court has not been used bonafide and properly, and therefore frivolous, vexatious and oppressive. The common feature of abuse of Court process is the improper use of judicial process by a party in litigation aimed or targeting on interference with due administration of justice. The features of abuse of judicial process are:
(a) Filing of multiplicity of actions on the same subject matter against the same opponents on the same issues or numerous actions on the same matter between the same parties even where there is in existence, a right to commence the action.
(b) Instituting different actions between the same parties simultaneously in different Courts even though on different grounds.
(c) Where two or more similar processes are used in respect of the exercise of the same right, for instance, a cross-appeal and a respondent’s notice; and
(d) Where two actions are instituted Coured in t, the second one asking for relief which may however be obtained in the first, the second action is, prima facie vexatious and therefore an abuse of Court process.
Above, are some of the instances where a Court process may amount to an abuse. In other words, what may or may not amount to abuse of a judicial process, will depend on the facts and circumstances of each case. See Alphonsus Ukanna & Ors. v. Nigerian Security Printing & Minting Plc. (2018) LPELR – 51206 (CA), Ogoejeofo v. Ogoejeofo (2006) 3 NWLR (Pt. 996) 206, Okorocha v. PDP (2014) 7 NWLR (Pt. 1406) 213, African Continental Bank Plc. V. Nwaigwe & Ors (2011) 7 NWLR (Pt. 1246) 380 and Oyeyemi & Ors v. Owoeye & Anor. (2017) LPELR-41903 (SC). Thus, to institute an action during the pendency of another one claiming the same reliefs, will amount to an abuse of Court process. It does not matter, whether the matter is an appeal, for as long as the previous action has not been finally decided, the subsequent action will constitute an abuse of process of the Court. See Adesokan v. Adegorolu (1997) 3 NWLR (Pt. 493) 297, Ojo & Ors v. Olawore & Ors (2008) 6-7 S.C. (Pt. 11) 54 and Amobi v. Nzegwu (2005) 12 NWLR (Pt. 938) 120 at 123. In Umeh & Anor. v. Iwu & Ors.(2008) 8 NWLR (Pt. 1089) 225, the Supreme Court, per I. T. Muhammad, JSC (as he then was) held that:
“It is multiplicity of same action in same Court or even before another Court or Courts being pursued simultaneously by the plaintiff/applicant as the case may be. The claim(s)/Reliefs may be worded differently, but it still amounts to an abuse of process where the substance or the end result of the two or more actions is the same…”
Now, the issue that bothers us now, is to determine whether the suit subject of this appeal is an abuse of Court processes in view of Appeal No: SC/CV/845/2020 now pending at the Supreme Court. The suit that led to the appeal at the Supreme emanated from a suit filed by the 1st Appellant (as the 8th plaintiff) together with 21 other political parties, challenging their de-registration as political parties by the Independent National Electoral Commission (Respondent). The trial Court (Court of 1st instance) dismissed the claims. Upon appeal to this, Court of Appeal, the de-registration was declared to be illegal being executed during the pendency of the suit and accordingly set aside. It is the decision of this Court that is on appeal before the Supreme Court. It is clear to me, that the subject matter of the suit which is on appeal before the Supreme Court, is on the de-registration of the 1st Appellant and other political parties by the Respondent. The reliefs under consideration in this issue, are reliefs (i) and (ii) of the Originating Summons. For better appreciation of the issue, let me again reproduce those reliefs:
(i) A DECLARATION that the non-publication of the Governorship candidate Hon. Anaso Alexender Chizoba and his Deputy is ultra vires the power of the defendant and in breach of Section 31(1) of the Electoral Act, 2010 (as amended) and as such null and void.
(ii) A DECLARATION that the defendant, the Independent national Electoral Commission has no power to reject the 2nd and 3rd claimants, the Governorship candidate of the 1st claimant in Anambra State.
A careful reflection on the two reliefs reproduced above, will reveal that, the subject matter of the dispute that led to this appeal centred on the refusal and/or failure of INEC (Respondent) to accept and register the 2nd and 3rd Respondent as the Governorship candidates of the 1st Appellant for the Anambra State Gubernatorial election that held on the 6th day of November, 2021. It should be noted that, the Respondent had given as its reason for rejecting the Governorship candidates of the Appellant, the fact that the status of the 1st Appellant as a registered political party is subject of appeal before the Supreme Court. Particularly, the Respondent deposed in paragraphs 5(b), (c), (d), (e), (f), (g) and (h) of the Counter-Affidavit in opposition to the Originating Summons as follows:
“5(b) That the Plaintiff and 21 other political parties instituted an action at the Federal High Court in Suit No: FHC/ABJ/CS/444/2019 between Advanced Congress of Democrats & 21 Ors. Vs. Independent National Electoral Commission (INEC) & Anor against their de-registration by the Defendant.
(c) That the Federal High Court in Suit No: FHC/ABJ/CS/444/2019 between Advanced Congress of Democrats & 21 Ors Vs. Independent National Electoral Commission (INEC) & Anor on 11th June, 2020 delivered judgment dismissing their case and upheld the de-registration of the Plaintiff and other political parties.
(d) That the Plaintiff and 21 other political parties further appealed the Judgment of the Federal High Court in Suit No: FHC/ABJ/CS/444/2019 between Advanced Congress of Democrats & 21 Ors Vs. Independent National Electoral Commission INEC & Anor against their de-registration by the Defendant to the Court of Appeal, Abuja Division in Appeal No: CA/A/CV/507/2020 between Advanced Congress of Democrats & 21 Ors V. Independent National Electoral Commission (INEC) & Anor
(e) Contrary to paragraphs 4(sic) and 10 of affidavit in support of the Originating Summons, the appeal of the Plaintiff at the Court of Appeal succeeded in part as reasons for the de-registration was not communicated to the Plaintiff and other political parties involved, as decided by the Court of Appeal. The judgment of the Court of Appeal in respect thereto is hereto attached as Exhibit 1.
(f) That further, contrary to paragraph 4 (sic) and 10 of the Plaintiff’s affidavit in support of Originating Summons, the Defendant deregistered the 1st Plaintiff as a political party and the issue surrounding the de-registration is being challenged and same is pending in the Supreme Court in SC/CV/485/2020 between Independent National Electoral Commission INEC v. Advanced Congress of Democrats & 21 Ors. The Notice of Appeal in respect thereto is hereto attached as Exhibit 2.
(g) That, further contrary to paragraph 4(sic) and 10 of Plaintiff’s affidavit in support of Originating Summons, the appeal entered by the Defendant at the Supreme Court will be rendered academic and hypothetical, if the orders favourable to the Plaintiff as contained in judgment at the Court of Appeal are enforced by this Honourable Court.
(h) Contrary to paragraphs 10 and 11 of affidavit in support of Originating Summons, at the time of the election in question, the appeal filed against the judgment of the Court of Appeal at the Supreme Court in SC/CV/485/2020 between Independent National Electoral Commission (INEC) Vs. Advanced Congress of Democrats & 21 Ors was subsisting. The Defendant did not refuse to list the Plaintiff as a political party but for the pendency of the appeal.
(i) Contrary to the affidavit in support of Originating Summons, the Defendant having appealed against the judgment relied upon by the Plaintiff cannot accede to the demand of the Plaintiff.
The Plaintiffs/Appellants filed a Further Affidavit in opposition to the Counter-Affidavit of the Defendant/Respondents, which substantially accepted the truth of the depositions of the Respondent reproduced above. That can be seen in the depositions in paragraphs 6, 7, 8 and 9 of the said Further Affidavit, as follows:
“6. That paragraph 5(b), (c), and (d) of the Counter-Affidavit are correct and I further state that the Court of Appeal declared the deregistration of the 1st defendant illegal and of no effect.
7. That paragraph 5(f) is correct to the extent that the defendant has appealed to the Supreme Court challenging the decision of the Court of Appeal but there is no stay of execution or and Judgment or Order of the any Court (sic) setting aside the Judgment of the Court of Appeal.
8. The judgment of Court of Appeal is still subsisting and binding on all the parties including the defendant.
9. That contrary to paragraph 5(g) and (h), an appeal does not amount to a stay of execution of validly made order of a Court and judgment of every Court is meant to be obeyed until set aside.
It would be seen therefore, that from the depositions in the affidavits of the parties, the suit subject of the appeal at the Supreme Court, has to do with the status of the 1st Appellant as a political party. In other words, the subject matter of the appeal in the Supreme Court is centred on whether or not, the 1st Appellant remains a validly registered political party. It is true that, this Court had declared the de-registration of the 1st Appellant as a political party, illegal, the issue has not been determined to finality as the Supreme Court, being the final or terminal Court on the issue is yet to pronounce on it. The issue therefore remains sub-judice before the Supreme Court. The issue that was raised before the trial Court, and which is now on appeal before us is on the refusal of the Respondent to recognize the 2nd and 3rd Appellants as “candidates” of the 1st Appellant in the Anambra State Gubernatorial election which was conducted on the 6/11/2021. I am of the view that, it is not possible to resolve the issue conclusively without resolving the issue of the legal status of the 1st Appellant as a validly registered political party. Thus, the issue being sub-judice, it would amount to an abuse of the judicial process to pronounce on the issue, when same is pending before the Supreme Court. On that note, I agree with the learned trial Judge when he found and held that the suit is a clear case of abuse of the process of the Court.
Having held as above, it is obvious that this appeal has neither substance nor merit. It is hereby dismissed. The judgment of the trial Court in suit no: FCT/HC/CV/1809/2021 delivered on the 19th day of January, 2022 is hereby affirmed.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: By the constitutional provisions and stipulations of the Electoral Act, elections are organised by the Respondent for registered political parties who nominate and sponsor candidates for elections. The status of the 1st Appellant as a registered political party is the subject of litigation which is now pending at the apex Court.
Notwithstanding this state of affairs, the 1st Appellant proceeded to nominate the 2nd and 3rd Appellants as the candidates to sponsor for the Anambra State Governorship election which took place on 6th November, 2021. In the light of the said uncertain state of the 1st Appellant as a political party due to the appeal before the apex Court, the Respondent rejected to accept the Appellants as candidates for the election, consequent upon which this action was filed by the Appellants.
The lead judgment of my learned brother, Haruna Simon Tsammani, JCA, which has just been delivered was made available to me in draft. I am allegiant to the reasoning and conclusion in the said lead judgment that the lower Court rightly held that on account of the appeal before the apex Court, it would amount to an abuse of process to pronounce on the declaratory reliefs sought by the Appellants. I adopt the said reasoning and conclusion as mine, with nothing more to add.
For the reasoning and conclusion therein contained, I agree that the appeal is devoid of merit. I equally dismiss the appeal and on the same terms as set out in the lead judgment.
MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment just delivered by my learned brother, HARUNA SIMON TSAMMANI, JCA.
I equally agree with the reasoning and the conclusion that the appeal lacks merit and it is accordingly dismissed.
I abide by all the consequential orders.
Appearances:
A. O. Okeke; Esq. For Appellant(s)
Kenechukwu Azie, Esq. For Respondent(s)