KADEMI v. ISA & ORS (2020)

KADEMI v. ISA & ORS

(2020)LCN/14838(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, December 16, 2020

CA/A/172/2020

RATIO

APPEAL: WHAT CONSTITUTES AN ISSUE FOR DETERMINATION

It is a settled principle of law that an issue for determination is usually a proposition of law or of facts in dispute between the parties necessary for the determination of this Court which will usually affect the result of the appeal. PER ADAH, J.C.A.

APPEAL: PURPOSE OF DISTILLING ISSUES FOR DETERMINATION

The purpose of distilling issues for determination is to enable the parties narrow the issues in the grounds of appeal filed. It therefore, follows that issues for determination are raised from the grounds of appeal and the issues must show brevity, clarity and accuracy to enhance a just determination of the appeal. Issues are not meant to be multiple or subjected to prolixity or being unwieldy. See Akintola v. Solana (1986) 2 NWLR (Pt. 24) 598; Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417, Ejowhomu v. Edok-Eter Mandilas Ltd (1986) 5 NWLR (Pt. 39) 1 and Ezekwesili & Ors. v. Agbapuonwu & Ors. (2003) LPELR 1204 (SC). PER ADAH, J.C.A.

SUMMONS: NATURE OF AN ORIGINATING SUMMONS

Originating Summons is not a general Writ of Summons neither is it convertible to a writ of fi fa for enforcement of a judgment of a Court. Originating Summons is a mode of commencement of a suit in Court. It is a procedure which is conveniently used where the facts are not in dispute or there is no likelihood of their being in dispute. It is reserved usually for the determination of questions of construction and not matters requiring the filing of pleadings or facts that are contestable. See Inakoju, Ibadan South East & Ors. v. Adeleke & Ors. (2007) 4 NWLR (Pt. 1025) 423. PER ADAH, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

SUWIDI MAMUDA KADEMI APPELANT(S)

And

1. ABUBAKAR DANLADI ISA 2. ALL PROGRESSIVES CONGRESS (APC) 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 4. SPEAKER KANO STATE HOUSE OF ASSEMBLY 5. KANO STATE HOUSE OF ASSEMBLY RESPONDENT(S)

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court, Abuja, in Suit No: FHC/ABJ/CS/903/2019, delivered on the 7th day of November, 2019, by Hon. Justice Taiwo O. Taiwo, J.

By a Concurrent Originating Summons dated the 29th day of July, 2019 and filed on the 1st day of August, 2019, the Plaintiff/Appellant approached the trial Court for determination of the following questions:
1. Considering the two judgments of the Court of Appeal in Appeal Number: CA/143/2019: Suwudi Mamuda Kademi vs Abubakar Danladi Isah & 2 Others; AND appeal Number CA/K/173/2019: All Progressive Congress (APC) vs. Abubakar Danladi Isah & Others delivered on the 27th May 2019, setting aside the Federal High Court decision/ruling delivered on the 21st February, 2019 and also its judgment delivered on 8th March, 2019 in suit No. FCH/KN/CS/170/18 and subsequently Appeal to the Supreme Court judgment on Appeal No. CA/143/2019 only which allowed in suit No: SC/616/2019, WHETHER THE JUDGMENT OF THE COURT OF APPEAL IN APPEAL NO: CA/W173/2019 is still not valid, subsisting and binding on all the parties having not appeal against by any party.

Whether having regards to the non-filing of Appeal of the judgment of the Court of Appeal in Suit No: CA/K/173/2019 delivered on the 27th May, 2019 by the Respondents thereto, whom were parties in this matter except the 4th & 5th respondents, and having exhausted the 14th days Appeal to the Supreme Court which lapsed on the 11th June, 2019, whether the said judgment should not be respected, obeyed by all the parties thereto.
3. Whether considering the judgment of the Supreme Court in Suit No: SC/616/2019 with regard to the judgment of the Court of Appeal, Kaduna Division in Appeal Number CA/K/143/2019, same is also to be applied to judgment of same Court of Appeal in Appeal Number CA/K/173/2019 that was not appealed against to the Supreme Court by the parties thereto.
4. Whether in all form and intent, Appeal Number CA/K/143/2019 and Appeal Number CA/K/173/2019 and their respective judgments are not distinct and separate from each other, and have separate binding force, considering two different Appellants filed their respective Appeal having been aggrieved with judgment of Federal High Court Kano in suit No:

FHC/CS/170/18 delivered on the 8th March, 2019, same parties whom are also party to this case except 4th & 5th respondents.
5. Whether a judgment/decision or order of any Court, and in the instance case, the considered judgment of the Court of Appeal Kaduna division delivered on the 27th May, 2019 in Appeal Number CA/K/173/2019 having not been appealed against and same set aside by Supreme Court, no matter how bad it might be, is not valid, binding and subsisting in all the parties in the matter.

Upon the determination of the above questions, the Plaintiff/Appellant thereafter, claimed the following reliefs against the Defendants now Respondents. The reliefs are:
1. A declaration that the two judgments of Court of Appeal in No: CA/K/143/2019: Suwudi Mamuda Kademi vs. Abubakar Danladi Isah & 2 Others; and Appeal No: CA/K/173/2019; All Progressive Congress (APC) vs. Abubakar Danladi Isa & Others delivered on the 27th May, 2019 setting aside Federal High Court Ruling/Decision delivered on the 21st February, 2019 and also its judgment delivered on 8th March, 2019 in Suit No: FCH/KN/CS/170/18 and subsequently Appeal filed to the Supreme Court

on the judgment on Appeal No: CA/K/143/2019 only which was allowed in suit No: SC/616/2019. Regardless, the Judgment of the Court of Appeal in Appeal No: CA/K/173/2019 is still valid, subsisting and binding on all the parties having not appealed against it specifically.
2. A declaration that: the non-filing of Appeal of Judgment of the Court of Appeal in Suit No: CA/K/173/2019 delivered on the 27th May, 2019 by all the Respondents thereto, whom were all parties in this matter except the 4th & 5th Respondents, and having exhausted the 14th days to Appeal to the Supreme Court which lapsed on the 11th June, 2019, the said judgment should be respected, obeyed by all the parties thereto.
3. A declaration that: the judgment of the Supreme Court in Suit No: SC/616/2019 with regard to the judgment of the Court of Appeal, Kaduna division in Appeal number CA/K/143/2019. Same is NOT applicable to the judgment of same Court of Appeal in Appeal number CA/K/173/2019 that was not appealed against to the Supreme Court.
4. A declaration that the Appeal Number CA/K/143/2019 and Appeal Number CA/K/173/2019 and their respective judgments are distinct and

separate from each other, and have separate binding force, considering two different Appellants filed their respective Appeals, having been dissatisfied with the judgment of the Federal High Court Kano in Suit No: FHC/CS/170/18 delivered on the 8th March, 2019.
5. A declaration that the judgment/decision or Order of any Court, and in the instance case, the considered judgment of the Court of Appeal Kaduna division delivered on the 27th May, 2019 in appeal number CA/K/173/2019 having not been appealed against and set-aside by the Supreme Court, regardless of any suppose defects, and or errors it might have, is still valid, binding and subsisting in all the parties in the matter having not been set aside by any Court order.
6. An order of this Honourable Court for injunction restraining the 1st Respondent from attempting and or parading himself as an elected member of the Kano State House of Assembly for Gaya State constituency having not been nominated, submitted by the 2nd Respondent and or had participated at the election already conducted on the 9th March, 2019, for the total obedience to the judgment of the Court of Appeal in Appeal Number

CA/K/173/2019 which is still valid and subsistence.
7. An order of this Honourable Court: for injunction restraining the 2nd Respondent as the elected member of the Gaya constituency of Kano State House of Assembly having not been nominated and or submitted his name to the 3rd respondents as its flag bearer on the Gaya constituency of the State House of Assembly election conducted on the 9th March, 2019 in obedience of the judgment of the Court of Appeal not appealed against in Appeal Number CA/K/173/2019.
8. An order of this Honourable Court: restraining the 3rd Respondent from issuing any certificate of return and or cancelled and withdrawn any certificate of return if given OR doing anything capable of recognizing him as an elected member Kano State House of Assembly having not been nominated and submitted by the 2nd respondent as its candidate at the Kano State House of Assembly representing Gaya constituency at the election conducted on the 9th March, 2019 in obedience to the judgment of the Court of Appeal in Appeal Number CA/K/173/2019 not appealed against by him or any party to the case.
9. An order of this Honourable Court restraining

the 4th and 5th Respondents from swearing in the 1st Respondent AND or take any step to recognizing him whatsoever into the Kano State House of Assembly representing Gaya State Constituency having not being nominated and/or submitted to the 3rd Respondent by the 2nd Respondent in obedience to the judgment of the Court of Appeal in Appeal Number CA/K/173/2019 not appealed against by him or any party to the case.
10. An order of this Honourable Court: directing all the parties in appeal number CA/K/173/2019 to abide by the judgment delivered on the 27th May, 2019, since no party to the appeal had appealed against the said judgment, and considering the time given (14 days) to appeal to the Supreme Court has since lapsed on the 11th June, 2019.
11. An order of this Honourable Court: restraining all the Respondents, their agents, servants, privies or any person or persons whatever called, jointly or severally from doing anything injurious or capable of disobeying the judgment of the Court of Appeal in Appeal Number CA/K/173/2019, being a valid, binding and subsisting judgment that was not appealed against by any of the party to Supreme Court.

And any order or orders consequential, as this Honourable Court may deem fit or necessary to make in the circumstances of this case.The said Concurrent Originating Summons was supported by a 27 paragraphed affidavit deposed to by the appellant himself dated 29th July, 2019 with 4 Exhibits marked as Exhibits AA to DD and also attached is a Written Address.
The respondents joined issues with the appellant by filing their respective counter affidavits. Thereafter, the appellant filed a Further and Better Affidavit to the respondents, respectively.

In a considered judgment of the trial Court delivered on the 7th day of November, 2019, the trial Court dismissed the suit of the appellant, for being an academic exercise.

The appellant been dissatisfied with the whole judgment, appealed to this Court vide a Four Ground Notice of Appeal dated and filed on the 29th day of January, 2020. The record of appeal was transmitted on 4th day of March, 2020.

The parties filed and exchanged their respective briefs of arguments. Appellant’s brief was filed on 23/03/2020, while the 1st Respondent’s brief was filed on 23/06/2020, 2nd Respondent’s brief was

filed on 17/7/2020 and 4th & 5th Respondent’s brief was filed on 26/8/2020. Appellant’s Reply Brief to the 1st Respondent was filed on 6/08/2020 but deemed properly filed on 7/09/2020, while the Appellant’s Reply Brief to the 2nd Respondent was filed on 6/8/2020.

The appellant in his brief distilled two issues for determination of this appeal, thus:
1. Whether the trial Court was right for not considering and determining the Appellants originating Summons in the light of the provision of Section 287(2) of the 1999 Constitution as amended in giving effect to the judgment of the Court of Appeal in CA/K/173/2019 which was not appealed against by the 1st to 3rd Respondents in this case. (Distilled from grounds 1 & 4).
2. Whether the trial Court was right when it held that the suit filed by the Appellant is unnecessary, incompetent and an abuse of Court process viz-a-vis whether the appellants suit before the trial Court was not meritorious and is academic in nature. (Distilled from grounds 2 & 3).

In response, the 1st Respondent distilled two issue for the determination of this appeal, as follows:

Whether the lower Court rightly found this case as “unnecessary an abuse of process and incompetent”?
2. Whether the trial Court rightly found that this case cannot be initiated by Originating Summons?

In response, the 2nd Respondent adopted the two issues distilled by the 1st Respondent for the determination of this appeal.

The 3rd respondent did not file any brief.
In response, the 4th and 5th Respondents distilled a sole issue for the determination of this appeal, as follows:
Whether the trial Court was right to have dismissed the Appellant’s Originating Summons on the grounds of being academic, an abuse of judicial process and incompetent.

A look at the issues generated by the parties in this appeal will show that the issues respectively nominated are similar in content but different in form. It is a settled principle of law that an issue for determination is usually a proposition of law or of facts in dispute between the parties necessary for the determination of this Court which will usually affect the result of the appeal. The purpose of distilling issues for determination is to enable the parties narrow the issues in the grounds of appeal

filed. It therefore, follows that issues for determination are raised from the grounds of appeal and the issues must show brevity, clarity and accuracy to enhance a just determination of the appeal. Issues are not meant to be multiple or subjected to prolixity or being unwieldy. See Akintola v. Solana (1986) 2 NWLR (Pt. 24) 598; Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417, Ejowhomu v. Edok-Eter Mandilas Ltd (1986) 5 NWLR (Pt. 39) 1 and Ezekwesili & Ors. v. Agbapuonwu & Ors. (2003) LPELR 1204 (SC).

I shall adopt the sole issue as submitted by the 4th and 5th Respondents in considering this appeal.
The sole issue is – Whether the trial Court was right to have dismissed the Appellant’s Originating Summons on the grounds of being academic, an abuse of judicial process and incompetent.

The learned counsel for the appellant while canvassing the issue submitted that the appellant filed a concurrent originating summons, which was filed pursuant to the provision of Section 287(2) of the 1999 Constitution as amended and the enabling provision of Order 3 Rule 6 & 7 of the Federal High Court 2019, simply to give effect to the judgment of

the Court of Appeal, Kaduna division in CA/K/173/2019 which was attached as exhibit “BB” to the concurrent originating summons (page 67-91 of the record of Appeal). That the trial Court failed to appreciate the fact that the said Court was not called upon to interpret the decision of the Court above it as stated in the judgment of the trial Court. That what the Plaintiff/Appellant seek before the trial Court is to give effect to the subsistence and validity of the said judgment, having not been appealed against by the Respondents to the Supreme Court and considering the fact that the judgment is only declaratory and can only be given effect by filing another action. He cited the case of Shodeinde v. The Registered Trustee of Ahmadiya Islamic Movement in Islam (1980) 1-3, pg 163 SC. That Section 287(2) of the 1999 Constitution as amended, was very clear on the power of any subordinate Court like in the instant case (Federal High Court) to enforce the judgment of the Court of Appeal. That the trial Court has a duty and a compulsory responsibility to enforce any judgment of the Court above it. That enforcing the judgment of the Court by the trial Court cannot by

all means and purpose be meaning interpreting such judgment, alter or review same, the appellant did not ask for any addition but to give effect to the judgment as allowed by Section 287 (2) of the CFRN as Amended, contrary to the holding of the trial judge in his judgment, refusing to determine the issue raised on the originating summons, the effect of which occasioned a miscarriage of justice to the Appellant and also denying him his fundamental right to fair hearing.

Furthermore, he contended that the Plaintiff/Appellant was only asking the Court to determine whether the judgment of the Court of Appeal in suit Number CA/K/173/2019 shall not be enforced, obeyed and respected by all the parties having not been appealed against and whether the judgment of the Supreme Court in Appeal No: SC/616/2019 in respect of Appeal Number CA/K/143/2019 is automatically applicable to CA/K/173/2019 not appealed against. That any decision/judgment not appealed against is valid, sacrosanct and must be obeyed until set aside by Court of competent jurisdiction. He cited the cases of Babatunde v. Olatunji & Others LPELR- 697 SC; Edilcon (Nig.) Ltd v. UBA Plc (2017) ALL FWLR pt. 901 pg 584 and J.B.E.D & P Ltd v. Nzegwu (2015) All FWLR Pt.797 pg. 755

Counsel submitted that the 1st Respondent having gotten the judgment of the Court of Appeal set aside in NO: CA/K/143/2019 at the supreme Court as shown in Exhibit “DD”, maintained that its existence has come to an end, same having been set aside by the highest Court of the land. That Such Judgment as shown in Exhibit “DD” at page 123-124 of the record of appeal does not confer any right or declare the 1st respondent as winner of the election or been validly nominated as candidate of the 2nd Respondent. That the Appellant is not contending the finality of the Supreme Court’s judgment on that appeal, but that their queries are the confusion the 1st Respondent created that he is now a member of the Kano State House of Assembly without any Court order till date, thereby, denying the appellant his right of being a lawfully elected member with the assistance of the 3rd, 4th & 5th respondents. That the judgment of the Court of Appeal CA/K/173/2019 that was not appealed against remains binding on the parties and the Appellant remains the elected member of the Kano State

House of Assembly, representing Gaya Constituency since he was the one that was nominated by the 2nd respondent and submitted to the 3rd respondent. That was the position before the 1st respondent even filed the action and got judgment at the Federal High Court, Kano and same judgment was set aside now by the Court of Appeal, Kaduna in CA/K/173/2019 thereby restoring the Appellants position before the filing of the 1st respondent case ab-initio at the Federal High Court Kano.

He maintained that these stated facts as shown on the originating summons with Exhibits “AA”, “BB” & “DD” that the trial Court failed to understand and give effect of the judgment in CA/K/173/2019 as provided for in Section 287 (2) of the 1999 Constitution as amended, failure of which denied the appellant fair hearing and same occasioned a miscarriage of justice. The judgment being declaratory is not the one that requires execution of the bailiffs of the Court of Appeal but can only be given effect/enforced by filing another action to invoke Section 287(2) of the 1999 Constitution as provided in the case of Shodeinde v. The Registered Trustee of Ahmadiya Islamic Movement in Islam (1980) 1-3, pg.163 SC.

Counsel reproduced Order 3 Rules 6 & 7 of the Federal High Court Civil Procedure Rules 2019, and pointed out that the 1st Respondent’s failure to appeal against the judgment in appeal number CA/K/173/2019 is deemed to have been accepted by him, that the said judgment remains valid and binds the parties. He relied on the following cases Durbar Hotel v. ltyough (2017) All FWLR Pt.883 at Pg. 1462 and Ugu v. Ugo (2017) All FWLR Pt. 902 page 906. That “the law is trite that conclusion or finding not appealed against is deemed correct until the contrary is shown” he referred this Court to the case of Edilcon (Nig.) Ltd v. UBA Plc (2017) All FWLR Pt.901 Pg.584. That in spite of all these cited judicial authorities the trial Court refused to be bound by same and grant the appellant’s reliefs. He cited the case of Attorney General of Anambra State v. Attorney General of the Federal Republic of Nigeria (2005) LPELR-13 SC. That the trial Court did not properly consider and evaluate the appellant’s Originating Summons with all the evidence that was brought by the enabling provision of Section 287 (2) of the 1999 CFRN as amended and under

Order 3 Rule 6 of the Federal High Court Rules. When issues are not for disputed facts but rather involves documents attached, Exhibit “AA”, “BB” & “CC” that only involves issues of law and given effects to the said provisions, in such kind of situation, originating summon is the most convenient and appropriate mode to commence an action. He cited the case of Sani v. Kogi State House of Assembly & Ors (2019) LPELR-46404 SC. That the issue raised by the Appellant at the trial Court is an issue of law and constitution, and that all the issues raised rested on documents i.e. Exhibit “AA”, “BB” & “CC” which were attached to the originating summons for determination. That despite the glaring facts, and cited judicial precedent, the trial Court fail to evaluate the evidence and exhibits attached. That in the process, dismissed the originating summons summarily without fair hearing, thereby, occasioned a miscarriage of justice. He cited the case of Zakirah v. Salisu Dan Azuma Mohammad & Ors. (2017) LPELR-42349 SC.

Counsel submitted that if this matter was not filed under originating summons certainly it cannot be filed under a Writ of Summons.

Originating Summons is the most approved method of filing not highly disputed cases/matters. He cited the case of Incorporated Trustee of Catholic Diocese of Ekiti State v. Attorney General of Ekiti State (2018) LPELR-43510 CA. That the law is settled that Originating Summons may be employed to commence an action where the issue involved is one of construction of a written law, instrument, deed, will or other documents or some questions of pure law are involved or where there is unlikely to be any substantial dispute on issues of facts between the parties. He maintained that if the trial judge had properly considered the arguments and submissions as canvassed on the reason/foundation of bringing this action considering the provision of Section 287(2) CFRN 1999 as amended, he would not have arrived at his holding quoted as ground one of the Appeal.

Counsel finally submitted that, the Court is not called upon to interpret the decision of the Court above it, but rather to give effect to the judgment of the Court of Appeal in CA/K/173/2019 that was not appealed against in line with the provision of Section 287(2) CFRN 1999 as amended.

That the trial judge is under obligation to consider all issues raised for determination before him which he failed to do and thereby occasioned a miscarriage of justice. He cited the cases of S.C.C (Nig) Ltd v. Anya (2013) ALL FWLR Pt.703 Pg 205; Inter Beer & Beverages Ind. Ltd v. Mutunci (Nig.) Ltd (2013) All FWLR Pt.670 Pg. 1250 and Ikpekhia v. F.R.N (2015) All FWLR Pt.771 Pg.1600.

The learned counsel for the appellant in addition submitted that, the appellant’s suit before the trial Court is necessary, competent and not an abuse of Court process devoid of being considered as academic in nature, contrary to the holding of the trial judge as encapsulated on grounds 2 and 3 of the appellant’s notice of appeal at page 370-377 of the record. He relied on the cases of Senator Umaru Dahiru v. All Progressive Congress & Other (2016) LPELR-42089 SC and ADighije v. Nwaogu (2010) All FWLR Pt. 521 Pg.1515. That this matter is not within the category of cases that can be referred to as academic in nature because the issues raised before the trial Court are constitutional in nature by virtue of Section 278(2) 1999 CFRN as amended and indeed involve practical situation of the right

of the appellant regarding his current membership of Kano State House of Assembly, the issues brought for determination (page 3-7 of the record). That the trial judge failed to appreciate the questions that are raised for determination and denied the appellant fundamental right to fair hearing thereby occasioned a miscarriage of justice.

He maintained that this Court and the Supreme Court have held in several authorities on the need to do justice by hearing all the issues raised for determination before the Court. That the trial Court failed to make pronouncement on the issues he brought with regards to its power to give effect/enforce the judgment of the Court of Appeal as provided for by Section 287(2) of CFRN 1999 as amended, even though it was argued on the appellants written address and reply on points of law of the 1st respondent at pages 215-216 of the record and the backbone of the appellant filing his Originating Summons. That there is no harm for the trial Court to decide the issues raised on its power to give effect to the judgment (Exhibit “BB”) as provided for by Section 287(2) of CFRN 1999 as amended, and make findings on the questions the

appellant seek for determination. But rather, the trial judge misdirected himself to say that he was called upon to interpret the judgment of the Superior Court above him, which was never the case of the appellant at the trial Court. That by so doing, the trial Judge failed to decide on the appellant’s issues seeking his determination but denied the appellant fair hearing. He cited the case of Abiola v. FRN (2015) All FWLR Pt 773 Pg. 1933. That the failure to hear and determine issues raised by parties like in the instant case is a denial of fair hearing. He cited the case of Ejeka v. State (2003) 7 NWLR Pt.819 Pg. 408.

Counsel submitted that the judgment of Court must be respected and if not appealed against by the parties, that it would be deemed to have been accepted. He relied on the case of Saleh v. Abah (2018) All FWLR Pt.933 at Pg. 948. That when a Court of competent jurisdiction delivered judgment even if the judgment in the opinion of any party to the case the judgment is void. That so long as it was not set aside by a Court of competent jurisdiction, same judgement is binding on all the parties. He cited the case of Zakirai v. Muhammad (2018) All FWLR Pt. 933 Pg. 948.

That whatever might be the insinuation or believe of the 1st respondent on the judgment of the Court of Appeal Number CA/K/173/2019 having not appealed against it specifically, is presumed in law as correct, valid and subsisting unless set aside. He cited the cases of Oba Amos Babatunde v. Mr Simon Olatunji & Others (2000) LPELR-697 SC and Edilcon (Nig.) Ltd v. IJBA Plc (2017) All FWLR Pt.901 at Pg. 584.

Counsel finally submitted that the appellant’s issues raised for determination of the trial judge cannot by all intent and purposes be regarded as an abuse of Court process, as the matter involve issues of constitution as provided for by Section 287 (2) CFRN 1999, as amended, and same issues have never been issues and ultimately, the Court judgment in the favour of the appellant will benefit him and his community having been validly elected to represent them at the Kano State House of Assembly which is still in session. That the action filed by the appellant at the trial Court is not by far an abuse of Court process unnecessary and academic in nature as the trial Court summarily dismissed the suit without making finding on all the issues the appellant raised for determination thereby denying him fair hearing to the action.

Counsel urged this Court to resolve this issue in favour of the appellant, allow this appeal and set aside the judgment of the trial Court dated 7th November, 2019 and enter judgment in favour of the appellant as per the reliefs on the Originating Summons.

Counsel for the 1st respondent, in response, canvassed that the appellant appeared not to appreciate the judgment of the trial Court at pages 365-366 of the record. That the trial Court in its judgment quite clearly stated that there was one Federal High Court Kano pre-election suit; two Court of appeal judgments stem out of it. He reproduced the findings of the trial Court as contained at pages 365 — 366, and stated that the decision of the trial Court in this case is for the appellant to obey the decision following the directives to “go back to that Court in line with the directive of the Court of Appeal if you so wish” and not to file a fresh case. That the appellant wrongly placed reliance on judicial authorities cited in his brief. That the Shodeinde’s case cited by the appellant is not

applicable at all. He posited that this suit is needless, if the appellant feel strongly enough that they can execute the decision of the Court of Appeal, (notwithstanding, the decision of the Supreme Court setting aside the sister appeal) is to go back for retrial before the Federal High Court Kano in the pre-election suit. Counsel was of the view that the appropriate thing to do, is for the appellant to go back to the Federal High Court, Kano and not to file a fresh case before the Federal High Court, Abuja. That the appellant has not pleaded that they had gone to Federal High Court, Kano and the Court refused to hear them. He maintained that filing fresh case is needless, hence the holding of the trial Court at pages 365-366 of the record.

Counsel further opined that the appellant’s brief deals with fair hearing which was not a ground of appeal in the instant case. That the appellant’s brief dedicated to throwing tantrums at the 1st Respondent and that there is no need to join issues with the appellant who seemingly does not appreciate the import of the 4th alteration to the constitution on pre-election cases or the finality of the decision of the supreme Court as a judgment in rem.

The learned counsel for the 1st respondent, while arguing this issue further pointed out that the appellant in one breath stated that this case is to enforce the judgment of the Court of Appeal and in another breath “seek the determination of a written document exhibits AA and BB and ask for enforceability of Exhibit BB”. That it is beyond argument that Originating Summons is for interpretation of a written document but not for interpretation of judgment of a Court by provision of Order 3 Rules 6 & 7 of the Federal High Court (Civil Procedure) Rules 2019. That Originating Summons is ideal where there is a Deed, Will, enactment or other written instrument and a claimant is claiming or feeling entitled by that document or lay claims of right. He relied on the case of Ikpeazu v. Ogah (2016) LPELR-40845 CA at page 48. That judgment is not an instrument that can be brought by Originating Summons. He relied on NICON v. P.I.E. Co Ltd (1990) 1 NWLR (Pt.129) CA 697 at 707, Race Auto Supply Company limited & Ors v. Akib (2006) 13 NWLR (Pt.997) 333 at 351-352 paras E-E; and Incorporated Trustees of Nigerian Governors Forum & Anor v. Riok Nigeria Limited & Ors. (2018) LPELR-44915 CA at 45-50.

He maintained that the appellant’s submission in paragraph 5.04 of his brief is not correct and should be discountenanced. That the trial Court firmly and rightly found pages 363-364 in the last paragraph of the record, in its judgment, that Originating Summons is not the appropriate method of commencing the action. He prayed that the appeal be dismissed on all grounds.

Counsel for the 2nd respondent adopted the arguments of the 1st respondent’s counsel word-for-word.
Counsel for the 4th & 5th respondents, while arguing the sole issue, submitted that the purpose of the Originating Summons is to interpret or construct a document such as Deed, Legislation Will or other documents where there is no dispute or disputed facts. That Order 3 Rule 6 of the Federal High Court Rules 2019 clearly stated this function. That the Appellant did not show in law where the trial Court is empowered to interpret judgment of Courts superior to it. That the record of appeal revealed that the appellant submitted 5 questions and 11 reliefs in his Originating Summons process for the purpose of

interpreting or constructing not only the two Court of Appeal judgments in Appeal numbers CAK/173/2019 and CA/K/143/2019 but also the Supreme Court decision number SC/616/2019. That Judgments of Court of Appeal or Supreme Court were not included in the lists or related to the lists of items under Order 3 Rule 6 of the Federal High Court Rules 2019. That the lower Court’s dismissal of the appellant’s process as incompetent is right and urge this Court to affirm the judgment of the Court below. Furthermore, the process used by the appellant in using Originating Summons to enforce judgment of a Court above the lower Court is wrong in law. He cited the case of Titilayo Plastic v. Fagbola (2019) 5 SCNJ 228 at page 274. That the lower Court was right to have declined to determine the Originating Summons when it pronounced at page 367, lines 4-6 of the record. That the argument of the appellant that all it asked the lower Court to do, is to exercise its legal right to enforce the Court of Appeal judgment number CAK/173/2019 as provided for under Section 287(2) of the 1999 Constitution. That the appellant however ignored Section 287(1) of the same Constitution and hierarchy of Courts enshrined and maintained by the doctrine of stare decisis which the section recognised.

Counsel submitted that what the lower Court did was to maintain order and discipline in the judicial process. All the facts parties and principles arrived at in the two Court of Appeal Decision No. CA/K/143/2019 and CA/K/173/2019 are the same and the decisions in the two appeals were given on the same date. He contended that the fact that the decision in the Supreme Court case no. SC/616/2019 which set aside the decision in CA/K/143/2019 overrides the decision in CA/K/173/2019 which was not appealed against when the doctrine of stare decisi is followed. He cited the case of A-G Lagos State v. Eko Hotels (2017) 12 SCNJ 221. That it has been a settled principle of judicial precedent that this Court is bound by its previous decision and can only depart there from, if it is in conflict with the decision of the supreme Court. He cited the case of Ahmed v. S.M.B. Ltd (2015) 13 NWLR (part 1476) page 403 at page 439. That the decision of the Supreme Court which set aside the judgment of the Court of appeal number CA/K/143/2019 which is on all fours with

Court of Appeal decision in appeal number CA/K/173/2019 is a judicial precedent on the judgment of the Court of Appeal number CA/K/143/2019. That enforcing the appeal number CA/K/173/2019 will breach the decision of the supreme Court in appeal number SC/616/2019. That the decision in SC/616/2019 is final and cannot be reviewed or altered in any material form by any Court even the Supreme Court itself. He cited the case of Aroso v. Enterprise Bank Ltd (2015) 13 NWLR (part 1476) 306 at page 315.

He maintained that the lower Court rightly held that the appellant’s case was an abuse of Court process (page 365, lines 11-13 of the record of appeal). That the Court of Appeal judgment in appeal number CA/K/173/2019, ordered retrial of the Kano Federal High Court case number FHC/K/N/CS/170 from which the two appeals of the Court of Appeal Kaduna emanated. By the order of the Court of Appeal, the appellant should have gone back to the case at the Federal High Court for a retrial which would have been subsisting. Instead of the appellant to go back to the Federal High Court Kano or file a proper process for enforcement, if there at all was anything to enforce, he

chose to open a new arena of litigation on issues litigated upon. He cited the case of Efet v. INEC (2011) 7 NWLR (part 1247) 423 at page 463.

Counsel further submitted that it is wrong and contrary to the principle of fair hearing enshrined under Section 36 of the 1999 Constitution for the appellant to enforce judgment No. CA/K/173/2019 against the 4th & 5th respondents who were not parties to the appeal. He cited the case of Adenuga v. Odumeru (2003) 4 SCNJ 1 at page 18. That it is a settled principle of law that a Court of law cannot make an order against a person who is not a party to a case and none of the Court of Appeal judgments made any order against the 4th & 5th respondents. He cited the cases of Unipress Ltd v. Akinluyi (1992) 8 NWLR (part 262) 737 at page 747 paras. F-G and Olawoye v. Jimoh (2013) 13 NWLR (part 1371) 362. Counsel contended that the lower Court had rightly dismissed the appellant’s Originating Summons on grounds that it is academic and incompetent. Its decision on appeal No. CA/K/173/2019 cannot salvage the issues set aside by the Supreme Court Decision No. SC/616/2019. That the appellant cannot derive any benefit from

the decision of the lower Court even if it determines the case in its favour. That, the Originating Summons had become academic and abuse of Court process. He cited the cases of Ugba v. Suswan (2014) 5 SCNJ 232 at page 271, Lokpobiri v. Ogola (2015) 11 SCNJ 71 at pages 109-110 and PDP v. Umeh (2017) 2 SCNJ 157 at 184-185.

Counsel finally pointed out that the complaint of lack of fair hearing has not been a ground in the appellant’s notice of appeal. It is therefore incompetent for the appellant to now formulate argument on issue of fair hearing without any ground in support thereof. He cited the case of Ukiri v. Geco-parakla (2010) 7 SCNJ 1 at paragraph 20 to 25 at page 10. Counsel contended that where a Court determines in a preliminary object that it lacks jurisdiction in a suit as the lower Court in this case has done, it is unnecessary to consider any arguments in support of issues for determination in the substantive matter. He cited the case of Ikechukwu v. FRN (2015) 3 SCNJ 63 at pages 85 to 86

Counsel urged this Court to uphold this issue in favour of the 4th & 5th respondents by affirming the judgment of the lower Court and dismiss this appeal because it has no merit with cost.

The parties in this appeal have in their respective briefs of argument strongly presented their various positions on this appeal. This Court has fully seen the nature and the content of this appeal. The case at the trial Court was instituted vide an Originating Summons. Originating Summons is not a general Writ of Summons neither is it convertible to a writ of fi fa for enforcement of a judgment of a Court. Originating Summons is a mode of commencement of a suit in Court. It is a procedure which is conveniently used where the facts are not in dispute or there is no likelihood of their being in dispute. It is reserved usually for the determination of questions of construction and not matters requiring the filing of pleadings or facts that are contestable. See Inakoju, Ibadan South East & Ors. v. Adeleke & Ors. (2007) 4 NWLR (Pt. 1025) 423.

In the instant case, the lower Court carefully looked into the Originating Summons vis-a-vis the notice of preliminary objection challenging it in its judgment. At pages 364 to 366 of the records of appeal, the learned trial judge had this to say:

With due respect to the learned counsel to the Plaintiff, as I do not want to waste judicial time on this matter, what does he want this Court to do? I ask. Can this Court question what has been determined by the Supreme Court that the judgment of the Court of Appeal in suit no. CA/K/143 is a nullity? Is it not a fact before the Court, that the Court of Appeal, came to the same conclusion in both appeals which stemmed from the decision of the Federal High Court, Kano Division albeit filed by the Appellants who were defendants before the Federal High Court? The Court of Appeal in both decisions, one of which was nullified on appeal to the Supreme Court is to the effect that the judgment of the Federal High Court, Kano division was set aside. If the Judgment of the Court was set aside, what next? You go back to that Court in line with the directive of the Court Appeal if you so wish. It is to be noted that the 4th and 5th Respondents were never parties to the suit leading to the Court of Appeal decisions wherein one of the decisions was appealed to the Supreme Court. … With due respect to the learned counsel to the Applicant, I consider with due respect to the learned counsel to

the Applicant, I consider this suit as unnecessary, an abuse of process and incompetent to say the least. I say this in view of Section 235 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which states as follows:” Without prejudice to the powers of the President or the Governor of a State with respect to prerogative mercy, no appeal shall lie to anybody from any determination of the Supreme Court”. This is the end of the road for any party in a suit, be it civil or criminal. The decision of the Supreme Court is final and all persons, bodies, Courts including this Court must abide by that decision and follow that decision until the Supreme Court decides to set aside its decision or judgment. This Court cannot amend, alter, interpret but can only give effect to the decision of the Supreme Court and of course the Court of appeal, where such decision is not appealed against.
The learned trial Judge then concluded that to proceed to determine or attempt to determine the main suit is not only an exercise in futility but that the suit has become academic.

Let me point it out swiftly here that under our law, when a decision is handed down by a Court of competent jurisdiction, the Court is functus officio and the decision is binding on the parties as well as their privies. It is not open to that Court or a Court of co-ordinate jurisdiction to review it. It is always certain that the decision, if not appealed upon is available for enforcement. The decision cannot be subjected to further analysis or verification by any other Court. It can only be reviewed on appeal or enforced through the process of enforcement as prescribed under our laws. Section 287 (1) – (2) of the 1999 Constitution provides.
287- (1) The decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons, and by Court with subordinate jurisdiction to that of the Supreme Court.
(2) The decisions of the Court of Appeal shall be enforced in any part of the Federation by all authorities and persons, and by Courts with subordinate jurisdiction to that of the Court of Appeal.
This provision is very clear and lucid. The Court has power to enforce the decisions in Supreme Court and the Court of Appeal. It has no power to determine the effect of the judgment or to

review or expatiate on the judgments of the two superior Courts. The cases as configured in this instant case is truly nothing but an abuse of the process of the Court. It was dead on arrival. The learned trial Judge excellently reviewed the facts of the case and held that the case was abusive of the process and an academic issue. The lower Court’s decision, I must say has no blemish.

The issue raised therefore, is resolved against the appellant. This appeal lacks merit. It is hereby dismissed. Parties to bear their respective costs.

MOHAMMED MUSTAPHA, J.C.A.: I have had the opportunity of reading in advance, the judgment of my learned brother STEPHEN JONAH ADAH JCA, just delivered.
I am in complete agreement with his Lordship. The appeal has no merit and I too dismiss it.

MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; STEPHEN JONAH ADAH. I agree with the reasoning, conclusion and orders therein.

Appearances:

RILWAN UMAR, ESQ. For Appellant(s)

SANUSI MUSA, ESQ., with him, JAFARU ALIYU, ESQ. and ABUBAKAR UMAR GAMBO, ESQ. – for 1st Respondent
ABDULSALAM SALEH – for 2nd Respondent
AMINA YUSUF YARGAYA, ESQ., with him, MUSA D. MUHAMMED, ESQ. and ABDULAHI BATURE, ESQ. – for 4th and 5th Respondents For Respondent(s)

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