PEOPLES? DEMOCRATIC PARTY v. UMAR LAWAL & ORS
(2015)LCN/7775(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of May, 2012
CA/A/612/2011
RATIO
COURT: JURISDICTION; THE IMPORTANCE OF JURISDICTION TO A PROCEEDING, WHEN THE ISSUE OF JURISDICTION CAN BE RAISED AND WHETHER THE LEAVE OF COURT MUST BE OBTAIN BEFORE THE SAME CAN EB RAISED
The Appellant submits, and I agree, that the issue of locus standi is one of jurisdiction. The linchpin of all adjudications is jurisdiction. Without jurisdiction any proceedings, no matter how brilliantly conducted, are a nullity. See MADUKOLU v. NKEMDILIM (1961) 2 NSCC 374 at 380. It is for this reason that in the current state of the law no leave is required to be first sought and obtained before the issue of jurisdiction can be raised for the first time at the appellate court. It can be raised at any stage of litigation and even for the first time at the Supreme Court: see ADERIBIGBE v. ABIDOYE (2009) 10 NWLR [pt.1150] 592 at 515; OSHATOBA v. OLUJITAN (2000) 5 NWLR [pt.655] 159. Very recently, the Supreme Court, in REAR ADMIRAL F.E. AGBITI v. THE NIGERIAN NAVY (2011) 4 NWLR [pt.1236] 175 at 207 – 208 (Adekeye, JSC) had stated emphatically that –
An appellant is allowed to raise the question of jurisdiction on appeal without leave of court whereas ordinarily a fresh issue can only be raised on appeal with leave of court sought and obtained -. I shall repeat with emphasis that an appellant does not require leave to raise the issue of jurisdiction, as it can be raised at any stage of the proceedings and in any manner. The issue of jurisdiction or competence, when raised, must be one which must be capable of being disposed of without need to call additional evidence. The issue of jurisdiction, being radically fundamental to adjudication must be properly raised before the court can rightly entertain that point.
Lest it should appear that the positions of the law re-stated in AGBITI v. NIGERIAN NAVY (supra) and OJIOGU v. OJIOGU (supra) are inconsistent I will make a distinction. The fresh point of law taken in AGBITI v. NIGERIAN NAVY (supra) involves the jurisdiction or competence of the tribunal or court martial to embark on the purported trial of the appellant. In OJIOGU v. OJIOGU (supra) the fresh point or issue raised without leave was the issue of repugnancy, which was not specifically pleaded at the trial court as a special statutory defence under the Evidence Act. per. EJEMBI EKO, J.C.A.
APPEAL: GROUND OF APPEAL; THE CRITERIA FOR SIFTING A GROUND OF APPEAL COMPLAINING ABOUT ERROR OF LAW FROM A GROUND COMPLAINING OF ERROR OF FACTS AND THE PRINCIPLES FOR DETERMINING WHAT IS A GROUND OF APPEAL COMPLAINING ONLY ABOUT AN ERROR OF LAW
There are established criteria for sifting a ground of appeal complaining about error of law from a ground complaining of error of facts. In ATOLAGBE v. SHORUN (1985) 1 NWLR [pt.2] 360 the Supreme Court had stated that a ground that attacks the finding of facts and/or alleges that the finding is either perverse or unreasonable is one of facts, or of mixed law and facts. Any ground that challenges, or requires, the evaluation of facts before the application of the law is a ground of mixed law and facts. See UBA v. STAHIBAU GMBH (1989) 3 NWLR [pt.110] 374. Still on these criteria Nnaemeka-Agu JSC in A.G., KWARA STATE v. OLAWALE (1993) 1 SCNJ 209 at 219 had stated that
If the facts, including any particulars thereof, upon which a ground of appeal is based, are disputed facts or those that require further resolution by the court, then the ground of appeal is one of facts. But, if such (facts) are settled or admitted facts, then the ground is one of law.
The Appellants have pointed out, and I agree, that from the various dicta of the Supreme Court the summary of the principles for determining what a ground of appeal complaining only about an error of law is, is as follows:
1. where the ground of appeal complains of an error involving a misunderstanding or misconception of the law or a misapplication of the law to proved or admitted facts, it is one of law: OGBECHIE v. ONOCHIE (1986) 2 NWLR [pt.23] 484 at 492; GENERAL ELECTRIC CO. v. AKANDE (2010) 18 NWLR [pt.1225] 596 at 623 – 624; OKOREAFFAI v. AGWU (2008) 12 NWLR [pt.11001] 165 at 185 – 186; SHANU v. AFRI-BANK (NIG) PLC (2000) 13 NWLR [pt.684] 392 at 402.
2. where the complaint is that the lower court used wrong principles in the exercise of its discretion upon facts and circumstances that are not indispute, and the only issue is the alleged use of wrong principles, the ground of appeal is one of law alone: ANUKAM v. ANUKAM (2008) 5 NWLR [pt.1081] 455 at 466 – 467.
3. where the complaint is that the lower court or tribunal failed to fulfill an obligation cast on it by law in the process of coming to a decision the ground is one of law alone: SHANU v. AFRI-BANK (supra).
4. A ground of appeal that raises an issue (s) of jurisdiction is one of law: GENERAL ELECTRIC CO. v. AKANDE (supra) at 514 & 618.
I find, upon reading the arguments of the 1st and 4th Respondents on their preliminary objection, that the preliminary objection is premised on Sections 241 (1) (b) and 242 (1) of the Constitution, 1999 that read, viz –
241. (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases;
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.
242. (1) subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or High Court made to the Court of Appeal with leave of the federal High Court or that High Court or the Court of Appeal.
They had though wrongly cited Section 242 (2) of the same Constitution.
From the decision of the Supreme Court in MINISTER OF FCT v. ABDULLAHI (2010) ALL FWLR [pt.507] 179 at 192 it is clear beyond doubt that a ground of appeal which involves question of law alone does not require leave of court even when the appeal is against an interlocutory decision. In this appeal all the grounds of appeal are couched as errors of law. I agree with the objectors that it is not what the appellant designates the ground of appeal to be that determines whether the ground of appeal is one of pure law alone, or whether it is of mixed law and fact, or simpliciter of fact alone. It is the nature of the ground of appeal including the substantive complaint and its particulars that is the determinant, whether it is a complaint of pure law alone, or whether the complaint is one of mixed law and facts, or of facts alone. See ABIDOYE v. ALAWODE (2001) 6 NWLR [pt.709] 463 at 476; UGBOAJA v. AKITOYE-SOWEMINMO (2008) 16 NWLR [pt.1113] 278 at 292.The entire body of the ground and its particulars must be read together. See ORAKOSIM v. MENKITI (supra) at 538. per. EJEMBI EKO, J.C.A.
EQUITABLE RELIEF: THE DOCTRINE OF QUIA TIMET; WHAT THE DOCTRINE OF QUIA TIMET ENTAILS
According to Black’s Law Dictionary 8th ed, quia timet is a legal doctrine that allows a person to seek equitable relief from future probable harm to a specific right or interest. The learned author relies on the following passages from C.J.S. EQUITY para 55 –
A second class of cases where equity courts act to prevent injury are known as “Quia Timet” cases. The name comes from the two Latin words, once used when asking relief in this class of cases; the words mean, “whereas he fears” that some injury will be inflicted in future unless the court of equity assists him in advance, the plaintiff asks the assistance of the court to do this, that or other thing with respect to the defendant, “Charles Herman Kinnane – A FIRST BOOK ON ANGLO-AMERICAN LAW 648 (2ed. 1952).
“Quia timet is the right to be protected against anticipated future injury that can not be prevented by the present action.
The doctrine of Quio timet permits equitable relief based on a concern over future possible injury to certain rights or interests, where anticipated future injury can not be prevented by a present action at law, such as where there is a danger that a defence at law might be prejudiced or lost if not tried immediately.” 27A Am. Jur. 2nd EQUITY 93, at 581 (1996) Order 13 Rule 20 of the Federal High Court Rules, 2009 gives the trial court enormous powers to strike out the suit before it at anytime for abuse of the court’s process. per. EJEMBI EKO, J.C.A.
COURT: ABUSE OF COURT PROCESS; WHAT CONSTITUTES AN ABUSE OF COURT PROCESS
What constitutes an abuse of the process of the court is varied and in-exhaustive. For example, it is an abuse of the court’s process to proceed piecemeal against the same persons or to institute two or more actions against the same persons on the same cause of action or issue. The principle goes thus – if two actions are commenced, the second action asking for a relief(s) which may have been obtained in the first, the second action is prima facie vexatious and an abuse of the process of the court. see NIMB LTD v. UBN LTD (2004) 2 NWLR [pt.888] 599 SC.
Abuse of the court’s process generally means an improper use of the process of court. It includes multiplicity of actions between the same parties and/or their privies on the same matter. Irregular use of court’s process or the use of the court’s process mala fide for the purpose of the irritation and annoyance of the other party also constitutes an abuse of court’s process. See SARAKI v. KOTOYE (2001) FWLR [pt.58] 1127; (1991) 9 NWLR [pt.264] 156; OKAFOR v. A.G., ANAMBRA STATE (1991) 6 NWLR [pt.200] 659; DINGYADI v. INEC (No.2) (2010) 18 NWLR [pt.1224] 154. per. EJEMBI EKO, J.C.A.
COURT: DUTY OF COURTS; THE DUTY OF EVERY COURT OF LAW, UNDER SECTION 5 (6) (A) OF THE CONSTITUTION, 1999 TO PROMPTLY DEAL WITH ANY ACTION BEFORE IT WHICH IT CONSIDERS TO BE AN ABUSE OF ITS PROCESS BY INVOKING ITS CONSTITUTIONAL POWERS TO DISMISS SUCH A PROCESS IN LIMINE
Every court of law has a duty, under Section 5 (6) (a) of the Constitution, 1999 to promptly deal with any action before it which it considers to be an abuse of its process by invoking its constitutional powers to dismiss such a process in limine. See SULLIVAN CHIME v. DUBEM ONYIA (2009) 2 NWLR [pt.1124] 1; SARAKI v. KOTOYE (supra). In addition to these inherent powers of court under the Constitution to deal with actions that may constitute an abuse of the process of the court; there are specific provisions in the Federal High Court (Civil Procedure) Rules, 2009 which empower the court to deal with abuse of process. See Order 13, Rule 20, order 16 Rule 2 (1), (2) and (3), and order 26 Rule 1. They provide –
Order 13, Rule 20:
The court may at any time, on the application of either party, strike out any pleading or any part thereof, on the cause of action, or no defence to the action, as the case may be, or the ground that it is embarrassing, or scandalous or vexatious, or an abuse of the process of the court; and the court may either give leave to amend the pleading, or any proceed to give judgment for the plaintiff or the defendant, as the case may be, or may make such other order, and upon such terms and conditions, as may seem just.
Order 16, Rule 2;
(1): A party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the Judge who tries the cause at or after trial.
(2) A point of law so raised may, by consent of the parties, or by order of the court or a Judge in chambers on the application of either party, be set down for hearing and disposed of at any time before the trial.
(3) If, in the opinion of the court – the decision on the point of law substantially disposes of the whole action, or of any distinct cause of action, – the court or Judge in chambers may thereupon dismiss the action or make such other order therein as may be just.
Order 26, Rule 1:
subject to these Rules, interlocutory applications may be made at any stage of an action. per. EJEMBI EKO, J.C.A.
PRACTICE AND PROCEDURE: LOCUS STANDI; THE ESSENCE OF LOCUS STANDI AND THE ONUS OF ESTABLISHING LOCUS STANDI
In virtue of Sections 5 (6) (b) and 36 (1) of the Constitution of the Federal Republic of Nigeria every person coming to a law court to invoke its judicial powers is obligated to disclose his locus standi or legal standing to initiate and maintain the action. Locus standi of the litigant is a condition precedent for invoking the jurisdiction of the law court. The necessary intendment for this condition precedent is to sieve and separate genuine litigants from mere busy bodies or impulsive Don Quixotes who may be more mindful to be seen only to fight other people’s course against imaginary “enemies.” The essence of locus standi rule is to protect the court from being used as a playground by professional litigants, busy bodies, meddlesome interlopers and cranks who have no real legal stake or interest in the subject matter of the litigation they pursue. See BEWAJI v. OBASANJO (2008) 9 NWLR [pt.1093] 540 relying on ADESANYA v. THE PRESIDENT (1981) 2 NCLR 358 and FAWEHINMI v. AKILU (1987) 4 NWLR [pt.67] 97.
This Court in BEWAJI v. OBASANJO (supra) at 573 has held that where the locus standi of the plaintiff is or has been challenged, he has the onus to establish that he has sufficient legal interest in the matter. See also OLANIYAN v. ADENIYI (2007) 3 NWLR [pt.1020] 1. per. EJEMBI EKO, J.C.A.
Justice
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
Justice
PEOPLES? DEMOCRATIC PARTYAppellant(s)
AND
1. UMAR LAWAL
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. RESIDENT ELECTORAL COMMISSION (REC) KOGI STATE
4. ALHAJI JIBRIN ISAH
5. CAPTAIN IDRIS WADARespondent(s)
EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): On 16th November, 2011 the Federal High Court sitting in Abuja (Coram: BALKISU BELLO ALIYU J) had, in the suit no FHC/ABJ/CS/807/2011, ruled in favour of the applications of the 4th Respondent and 5th Respondent for joinder in the suit of Umar Lawal, 1st Respondent, respectively as the 2nd Applicant and 4th Respondents in the said suit. The application of the present 5th Respondent to join and defend the suit no FHC/ABJ/CS/807/2011, as 4th Respondent therein, was not contested.
The application of ALHAJI JIBRIN ISAH (4th Respondent herein) to join the initial applicant, Mr. UMAR A. LAWAL (THE 1st Respondent herein) as the 2nd Applicant in that suit for the purpose of prosecuting same was stoutly resisted by the Appellant herein. The ground of the Appellant’s opposition to the joinder of the 4th respondent as 2nd Applicant to prosecute the suit no FHC/ABJ/CS/807/2011 in which the Appellant herein was one of the defendants is that: in view of the pendency of another suit no FCT/HC/CV/180/2011: JIBRIN ISAH v. (1) PEOPLES’ DEMOCRATIC PARTY & (2) CAPTAIN IDRIS WADA at the High Court of Federal Capital Territory whose “cause of action and subject matter – are the same (with those in suit no FHC/ABJ/CS/807/2011) as they relate TO Kogi State Primary election for the Governorship seat of Kogi State”; the joinder of ALHAJI JIBRIN ISAH, who is the plaintiff in the said suit (No FCT/HC/CV/180 /2011), as Plaintiff or 2nd Applicant in the instant suit (No FHC/ABJ/CS/807/2011) is an abuse of the court process. In the considered ruling, delivered on 16th November, 2011, the learned trial Judge granted the application of ALHAJI JIBRIN ISAH, the present 4th Respondent, and made him the 2nd Applicant in the suit No FHC/ABJ/CS/807/2011. The learned trial Judge, however, ruled “that the issue of abuse court’s process raised by the (the present Appellant) is rather premature at this stage.” Aggrieved by this Ruling of 16th November, 2011 the present Appellant, as the 3rd respondent in the suit no FHC/AB J/CS/807/2011, filed his notice of appeal timeously on 23rd November, 2011.
The notice of appeal was subsequently amended. The Appellant, vide order of this Court made on 14th February, 2012, filed the amended Notice of Appeal on 16th February, 2012. The three grounds of appeal therein are herein below reproduced, that is –
1. The learned trial Judge erred in law when his lordship held that I have studied the affidavit and the address of counsel of the 3rd Respondent on this issue and indeed I have summarized process at this stage will mean we are deciding the substantive application even before it is properly tried.
Presently, the 1st party seeking to be joined, re. Alhaji Jibrin Isah is not yet a party before the court and in this suit. To my mind it is only When he is made a party to the suit that the issue of whether he has done anything which will affect his standing as a party can be determined. (sic) Moreover, the suit is not on trial at this stage.
PARTICULARS
i. Unchallenged evidence abound before the court that Alhaji Jibrin Isah (party seeking to be joined as Applicant) had filed and argued another case before another court. In the suit no: FHC/H3/CV/180/ 2011.
ii. The said suit No: FHC/HC/180/2011 was adjourned for judgment on 31/10/2011 when the motion for joinder was moved.
iii. The issue of abuse of court’s process was not against the substantive Applicant.
iv. The issue of abuse of court’s process was raised against the joinder.
v. The learned trial Judge nonetheless held that abuse of the court process could only be raised at trial stage.
2. The learned trial Judge erred in law when having held that:
“That law as established by plethora of judicial authorities and the Rules of procedure of this court cited by all the counsels in the two applications is that the court in exercising its discretion whether or not to join a party to the suit, has to consider the suit AS IT EXISTS BEFORE IT” [Emphasis supplied]; but nonetheless concluded and held thus:
“I therefore agree with Mr. Ameh, SAN that the issue of abuse of court’s process raised by the 3rd Respondent is rather premature at this stage and I so hold.”
PARTICULARS
i. The issues of abuse was against the application for joinder.
ii. The application was argued and abuse of court process was raised to same.
iii. Abuse of court process can be raised to any process of court, not necessarily the main suit.
iv. At the time the motion for joinder was filed was when the abuse existed in the suit before the Honourable court.
v. The learned trial Judge was not obliged to exercise his esteemed discretion if indeed abuse existed before it at the time the application for joinder was filed and argued.
3. The learned trial Judge erred in law when His Lordship assumed jurisdiction to hear, determine and indeed granted the application for joinder.
PARTICULARS
i. The 1st Respondent was not a contestant at the primaries he sought to challenge before the lower court.
ii. The 1st Respondent had no locus standi to file the suit before the court thereby robbing the lower court of jurisdiction.
iii. Prior to the filing of the motion for joinder, 1st Respondent was the only plaintiff before the lower court.
iv. The lower court conferred jurisdiction on itself by subsequently hearing and granting the application for joinder of the 4th Respondent.
v. Jurisdiction is the state of affairs at the time of filling this suit.
The parties have exchanged Briefs of Argument, which on 7th May, 2012 their respective counsel adopted as their arguments in the appeal.
The 1st and 4th Respondents, before adopting their joint brief filed on 21st February, 2012 adopted their argument in respect of the Notice of preliminary objection they had also filed on 21st February, 2011. The arguments are incorporated in their joint Brief of Argument, particularly in paragraphs 3.1 – 3.12 thereof. The Appellant’s response to the preliminary objection challenging the competence of the three grounds of appeal is in the Appellant’s Reply Brief to 1st and 4th Respondent’s Brief of Argument filed on 6th March, 2012, but deemed filed on 19th March, 2012.
I will first take the objection to the Appellant’s third ground of appeal. The objection is on two grounds, namely: that the trial court did not decide on the issue of the locus standi of the 1st Applicant/Respondent to commence the suit the subject of this appeal, and that the issue of locus standi raises a question of mixed law and fact. I had earlier reproduced Ground 3 of the grounds of appeal.
The complaint of the 1st and 4th Respondents against this ground 3 of the grounds of appeal is that it raises a fresh issue, which can not be raised at this Court without leave, as the issue was not pronounced upon by the trial court. The law on this is quite settled, generally though, and the two authorities – OJIOGU v. OJIOGU (2010) ALL FWLR [pt.538] 840 at 854 D and AUDU v. INEC (No.2) (2010) 13 NWLR [pt.1212] 456 at 490 G – H, cited by counsel to 1st and 4th respondents are quite apposite. The principle restated in OJIOGU v. OJIOGU (supra) at page 854 D – E by the Supreme Court is that ordinarily the appellate court will not allow a fresh issue on appeal to be taken as it has not been pronounced upon by the court below. It is not an absolute ban that a fresh issue will not be allowed to be taken at the appellate court. Where, however, the fresh issue involves substantial points of law, substantive or procedural, and it is plain that no further evidence may be called, the appellate court may allow the issue to be raised subject to leave being first sought and granted. This however, does not preclude the Appellant from raising the issue of jurisdiction for the first time at the appellate court. That is the second exception to the general rule.
The Appellant submits, and I agree, that the issue of locus standi is one of jurisdiction. The linchpin of all adjudications is jurisdiction. Without jurisdiction any proceedings, no matter how brilliantly conducted, are a nullity. See MADUKOLU v. NKEMDILIM (1961) 2 NSCC 374 at 380. It is for this reason that in the current state of the law no leave is required to be first sought and obtained before the issue of jurisdiction can be raised for the first time at the appellate court. It can be raised at any stage of litigation and even for the first time at the Supreme Court: see ADERIBIGBE v. ABIDOYE (2009) 10 NWLR [pt.1150] 592 at 515; OSHATOBA v. OLUJITAN (2000) 5 NWLR [pt.655] 159. Very recently, the Supreme Court, in REAR ADMIRAL F.E. AGBITI v. THE NIGERIAN NAVY (2011) 4 NWLR [pt.1236] 175 at 207 – 208 (Adekeye, JSC) had stated emphatically that –
An appellant is allowed to raise the question of jurisdiction on appeal without leave of court whereas ordinarily a fresh issue can only be raised on appeal with leave of court sought and obtained -. I shall repeat with emphasis that an appellant does not require leave to raise the issue of jurisdiction, as it can be raised at any stage of the proceedings and in any manner. The issue of jurisdiction or competence, when raised, must be one which must be capable of being disposed of without need to call additional evidence. The issue of jurisdiction, being radically fundamental to adjudication must be properly raised before the court can rightly entertain that point.
Lest it should appear that the positions of the law re-stated in AGBITI v. NIGERIAN NAVY (supra) and OJIOGU v. OJIOGU (supra) are inconsistent I will make a distinction. The fresh point of law taken in AGBITI v. NIGERIAN NAVY (supra) involves the jurisdiction or competence of the tribunal or court martial to embark on the purported trial of the appellant. In OJIOGU v. OJIOGU (supra) the fresh point or issue raised without leave was the issue of repugnancy, which was not specifically pleaded at the trial court as a special statutory defence under the Evidence Act.
The claims or pleadings of the 1st Respondent, as the Applicant for judicial review, are in the record of appeal for this Court to view and consider. No fresh or additional evidence is therefore required in order that it be determined whether the 1st Respondent, in initiating his proceeding had disclosed his locus standi in the matter. As submitted by the Appellant, in determining whether or not the court has jurisdiction, particularly locus standi, it is only the claims of the plaintiff or the applicant that the court considers. see OWODUNMI v. REGISTERED TRUSTEES OF CCC (2000) 10 NWLR [pt.675] 315. The preliminary objection of 1st and 4th Respondents on this question is hereby overruled.
I had earlier set out the three grounds of appeal. The 1st and 4th Respondents contend that the complaints in each of all the 3 grounds of appeal are of mixed law and facts, and that since this is an interlocutory appeal leave to appeal must be first sought and obtained, in view of section 241 (1) (b) and 242 (2) of the Constitution, 1999, before the Appellant could file his appeal. Where leave to appeal is necessary, it must be applied for and duly obtained; counsel for 1st and 4th Respondents submits on authority of AMUDIPE v. ARIJODI (1978) 2 LRN 128, etc, and I agree. It is not enough for the Respondents to assert that the grounds require leave to be first sought and obtained before the appellant could file his appeal. He has a duty to demonstrate, convincingly, that the 3 grounds of appeal objected to actually require leave to be first sought and obtained before the appeal could be filed. He who asserts must prove.
The 1st and 4th Respondents have submitted, correctly in my view, that in ascertaining the nature of a ground of appeal, the ground and its particulars must be read together. In otherwords, the ground of appeal is not to be read in isolation of its particulars. See ORAKOSIM V. MENKITI (2001) 87 LRCN 1536 at 1538; IKEM v. EZIANYA (2002) 4 NWLR [pt.757] 245.
There are established criteria for sifting a ground of appeal complaining about error of law from a ground complaining of error of facts. In ATOLAGBE v. SHORUN (1985) 1 NWLR [pt.2] 360 the Supreme Court had stated that a ground that attacks the finding of facts and/or alleges that the finding is either perverse or unreasonable is one of facts, or of mixed law and facts. Any ground that challenges, or requires, the evaluation of facts before the application of the law is a ground of mixed law and facts. See UBA v. STAHIBAU GMBH (1989) 3 NWLR [pt.110] 374. Still on these criteria Nnaemeka-Agu JSC in A.G., KWARA STATE v. OLAWALE (1993) 1 SCNJ 209 at 219 had stated that
If the facts, including any particulars thereof, upon which a ground of appeal is based, are disputed facts or those that require further resolution by the court, then the ground of appeal is one of facts. But, if such (facts) are settled or admitted facts, then the ground is one of law.
The Appellants have pointed out, and I agree, that from the various dicta of the Supreme Court the summary of the principles for determining what a ground of appeal complaining only about an error of law is, is as follows:
1. where the ground of appeal complains of an error involving a misunderstanding or misconception of the law or a misapplication of the law to proved or admitted facts, it is one of law: OGBECHIE v. ONOCHIE (1986) 2 NWLR [pt.23] 484 at 492; GENERAL ELECTRIC CO. v. AKANDE (2010) 18 NWLR [pt.1225] 596 at 623 – 624; OKOREAFFAI v. AGWU (2008) 12 NWLR [pt.11001] 165 at 185 – 186; SHANU v. AFRI-BANK (NIG) PLC (2000) 13 NWLR [pt.684] 392 at 402.
2. where the complaint is that the lower court used wrong principles in the exercise of its discretion upon facts and circumstances that are not indispute, and the only issue is the alleged use of wrong principles, the ground of appeal is one of law alone: ANUKAM v. ANUKAM (2008) 5 NWLR [pt.1081] 455 at 466 – 467.
3. where the complaint is that the lower court or tribunal failed to fulfill an obligation cast on it by law in the process of coming to a decision the ground is one of law alone: SHANU v. AFRI-BANK (supra).
4. A ground of appeal that raises an issue (s) of jurisdiction is one of law: GENERAL ELECTRIC CO. v. AKANDE (supra) at 514 & 618.
I find, upon reading the arguments of the 1st and 4th Respondents on their preliminary objection, that the preliminary objection is premised on Sections 241 (1) (b) and 242 (1) of the Constitution, 1999 that read, viz –
241. (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases;
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.
242. (1) subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or High Court made to the Court of Appeal with leave of the federal High Court or that High Court or the Court of Appeal.
They had though wrongly cited Section 242 (2) of the same Constitution.
From the decision of the Supreme Court in MINISTER OF FCT v. ABDULLAHI (2010) ALL FWLR [pt.507] 179 at 192 it is clear beyond doubt that a ground of appeal which involves question of law alone does not require leave of court even when the appeal is against an interlocutory decision. In this appeal all the grounds of appeal are couched as errors of law. I agree with the objectors that it is not what the appellant designates the ground of appeal to be that determines whether the ground of appeal is one of pure law alone, or whether it is of mixed law and fact, or simpliciter of fact alone. It is the nature of the ground of appeal including the substantive complaint and its particulars that is the determinant, whether it is a complaint of pure law alone, or whether the complaint is one of mixed law and facts, or of facts alone. See ABIDOYE v. ALAWODE (2001) 6 NWLR [pt.709] 463 at 476; UGBOAJA v. AKITOYE-SOWEMINMO (2008) 16 NWLR [pt.1113] 278 at 292.The entire body of the ground and its particulars must be read together. See ORAKOSIM v. MENKITI (supra) at 538.
I had earlier set out the standard templates or criteria for determining whether a ground of appeal is one of pure law alone, or of mixed law and facts, or simpliciter one of facts alone. I will consider each ground against the said templates or criteria for sifting grounds of law from grounds of mixed law and facts, or grounds of facts alone.
Grounds 1 and 2 of the amended notice of appeal complain that the learned trial Judge erred in law in holding that the issue of abuse of the court’s process can be raised after the party seeking to be joined as a plaintiff had been duly joined as a party and that until then it is “rather premature” to raise the question. The question raised in these grounds is one of the learned Judge’s misapplication of the principle of law governing abuse of court’s process upon proven and undisputed facts. The issue was raised against the 4th Respondent herein whose earlier suit no FCT/HC/CV/180/2011 still subsists is not a disputed fact. It is on the existence or subsistence of that suit, wherein the 4th Respondent is the plaintiff that the Appellant herein is complaining that the joinder of the same 4th Respondent herein as a plaintiff or applicant will render the present suit no FHC/ABJ/CS/807/2011 as an abuse of the process of the court. This complaints in grounds 1 and 2 of the grounds of appeal are on a ground of pure law alone. Accordingly, I agree with the Appellant that the ground conforms with the templates in OGBECHIE v. ONOCHIE (supra); GENERAL ELECTRIC CO. v. AKANDE (supra); OKOREAFFAI v. AGWU (supra) and SHANU v. AFRIBANK (supra). The grounds do not require leave to be previously sought and obtained before they could be filed.
Specifically on ground 2 of the grounds of appeal, I agree with the Appellant, on authority of ANUKAM v. ANUKAM (supra), that a ground of appeal that complains that a trial court, in exercising his discretion on established facts, had used wrong principle(s) of law, is definitely a ground of law alone. As Eso, JSC stated in OGBECHIE v. ONOCHIE (supra) at pages 11 – 12 thereof, where the trial court fails to apply established facts correctly to the circumstances of the case before it and there is an appeal to the appellate court alleging misdirection in the exercise of discretion by a misapplication of the principles of law, the ground of appeal alleging such misdirection is a ground of law and not fact.
I have read ground 3 of the grounds of appeal. The complaint is that the absence of the locus standi in the 1st Respondent herein to bring action in the first place rendered the suit incompetent and void ab initio and that the learned trial Judge was wrong in law to have joined the present 4th Respondent as the 2nd Plaintiff/Applicant to a suit that was ab initio incompetent. Put the other way, the Appellant complains in ground 3 that the wrongful joinder of the present 4th Respondent to the suit as the 2nd Applicant in the suit no FHC/AB J/CS/807/2011 was not only to redeem an incompetent suit, but also an act of the lower court to confer on itself jurisdiction. The facts specified in the particulars of error are not facts in dispute or controversy. They do not need or require additional evidence.
They are established facts in the Record of appeal. This ground 3 is a pure issue of law alone. It is not of either mixed law and facts, or of facts simpliciter. The ground does not, in my firm view, require previous leave to be sought and granted before it could be filed. In the circumstance the authorities – NWOSU v. OFFOR(1997) 2 NWLR [pt.487] 274; NDAYAKO v. MOHAMMED (2005) 6 NWLR [pt.920] 85; WELLI v. OKECHUKWU (1985) NWLR [pt.5] 63; OJEMEN v. MOMODU (1983) ALL NLR 32, cited by the objectors, are all irrelevant and inapplicable to the present circumstance of this case.
In my considered view there is no substance in the preliminary objection. Accordingly, it is dismissed in its entirety. Now, the merits of the appeal. From the 3 grounds of appeal, reproduced earlier in this judgment, the Appellant has formulated two issues, to wit:
1. whether the learned trial Judge was right to have held that the issue of abuse of court’s process could only be raised at the stage of the trial of the suit?
[Distilled from grounds 1 and 2].
2. whether the learned trial Judges had jurisdiction to hear and determine the application for joinder? [Distilled from ground 3].
The 5th Respondent expressly “adopts the issues as already formulated by the Appellant.”
The only issue formulated from the three grounds of appeal by the 1st and 4th Respondent is –
Whether, in the circumstances of this case, the trial court was right in granting the application of the 4th Respondent as the 2nd Applicant?
On their part, however, the 2nd and 3rd Respondents have formulated the following three issues for determination, that is:
a. Whether the learned trial Judge was legally right to have held that the issue of an application for the joinder of 4th Respondent in suit no FHC/ABJ/CS/807/2011 which was alleged by the Appellant as an abuse of court process can only be considered and determined after the 4th Respondent is made party to the suit.
b. whether the learned trial Judge was legally right to have held that it was premature for the 3rd Respondent to have raised the issue of abuse of court process as at when the 3rd Respondent indeed raised the said issue of abuse of court process which was when the 4th Respondent applied to be joined in suit no FHC/ABJ/CS/807/2011 as a party in this suit.
c. whether the learned trial Judge was legally right when it assumed jurisdiction to hear, determined and/or finally granted the Application to join Alhaji Jibrin Isah without hearing or considering the unchallenged or uncontroverted facts contained in the Appellant Counter-Affidavit at the lower court which seeks to challenge the said motion for the joinder of the 4th Respondent in suit no FHC/ABJ/CS/807/2011 which indeed constitutes an abuse of court process because or/and even the 1st Respondent had no locus to institute suit no FHC/ABJ/CS/807/2011.
Against the application of the present 4th Applicant to be joined as the 2nd Applicant in the suit no FHC/ABJ/CS/807/2011, Appellant had protested quia timet that the joinder of the 4th Respondent herein as 2nd Applicant in the suit no FHC/ABJ/CS/807/2011 would, in view of the subsistence of suit no FCT/HC/CV/180 /2011 the suit of the 4th Respondent, as 2nd Applicant in FHC/ABJ/CS/807/2011, constitute an abuse of the court process. The learned trial Judge thought and held that the issue of abuse of court process raised at this stage by the 3rd Respondent, who is now the Appellant, was rather premature at this stage. Her thinking was that the stage or point at which the issue could be raised would be when, or after, the present 4th Respondent had been properly joined as the 2nd Applicant in the suit no FHC/AB J/CS/807 /2011. The learned trial Judge did not seem to think or agree with the Appellant, that he (the Appellant), by the equitable doctrine of quia timet, as the 3rd Respondent at the trial court, had a right “to seek equitable relief from future probable harm to a specific right or interest.”
According to Black’s Law Dictionary 8th ed, quia timet is a legal doctrine that allows a person to seek equitable relief from future probable harm to a specific right or interest. The learned author relies on the following passages from C.J.S. EQUITY para 55 –
A second class of cases where equity courts act to prevent injury are known as “Quia Timet” cases. The name comes from the two Latin words, once used when asking relief in this class of cases; the words mean, “whereas he fears” that some injury will be inflicted in future unless the court of equity assists him in advance, the plaintiff asks the assistance of the court to do this, that or other thing with respect to the defendant, “Charles Herman Kinnane – A FIRST BOOK ON ANGLO-AMERICAN LAW 648 (2ed. 1952).
“Quia timet is the right to be protected against anticipated future injury that can not be prevented by the present action.
The doctrine of Quio timet permits equitable relief based on a concern over future possible injury to certain rights or interests, where anticipated future injury can not be prevented by a present action at law, such as where there is a danger that a defence at law might be prejudiced or lost if not tried immediately.” 27A Am. Jur. 2nd EQUITY 93, at 581 (1996) Order 13 Rule 20 of the Federal High Court Rules, 2009 gives the trial court enormous powers to strike out the suit before it at anytime for abuse of the court’s process.
The request or invitation of the Appellant to the learned trial Judge to refuse the joinder of the present 4th Respondent, as the 2nd Applicant in the suit no FHC/ABJ/CS/807/2011, was made Quia timet to prevent an abuse of court of process which will befall the 2nd Applicant, now 4th Respondent, if the order of his joinder was eventually made. On this premise, and without much ado, I think and so hold firmly, that the learned trial Judge was wrong and erred in law to hold that “the issue of abuse of the court’s process raised by the 3rd Respondent (now Appellant) (was) rather premature at the stage it was raised.
The issue of the subsequent suit no FHC/ABJ/CS/807/2011, in which the 4th Respondent herein was made the 2nd Applicant to prosecute against the Appellant and others, being an abuse of process of the court by dint of the suit no FCT/HC/CV /180/2011 at the instance of the same 4th Respondent herein, as the 2nd Applicant in FHC/ABJ/CS/807/2011, had been made in the course of the trial. The learned trial Judge or the court below had a duty to resolve that issue raised. The effect of the failure of the trial court to resolve that issue is fatal to the decision reached by the trial court:
see NWADIKE v. IBEKWE (1987] 11- 12 SCNJ 72; (1987) NWLR [pt.67] 1 at 19; see also DIPCHARIMA & ANOR v. ALI & ANOR (1974) 1 ALL NLR [pt.2] 420 at 422; DUMUYE v. IDIAZO (1978) 2 SC 1 at 7 -8.
I have just held, on the doctrine of Quia timet, that the learned trial Judge was in error to have held that the question of the 4th Respondent, upon his being joined as 2nd Applicant in suit no FHC/ABJ/CS/807/2011, becoming guilty of abuse of court’s process by dint of his subsisting suit no FHC/ABJ/CS/180/2011, was premature. I have also held that the issue of the subsequent suit no FHC/ABJ/CS/807/2011 by the 4th Respondents, as the 2nd Applicant therein, being an abuse of the court’s process having been raised ought to have been decided upon or resolved on authority of NWADIKE v. IBEKWE (supra), etc. This Court by dint of Section 15 of the Court of Appeal Act, 2004 and Order 4 Rule of the Court of Appeal Rules 2011 can step in, assume jurisdiction over that issue and make such or “any order necessary for determining the real question in controversy in the appeal.” See also INAKOJU v. ADELEKE (2007) 4 NWLR [pt.1025] 423; AMAECHI v. INEC (2008) 5 NWLR [pt.1080].
The real question in controversy here is; whether the suit of the 2nd Appellant (no FHC/ABJ/CS/807/2011) constitutes an abuse of the process of the court in view of his subsisting suit no FCT/HC/CV/180/2011 at the High Court of the Federal Capital Territory. What constitutes an abuse of the process of the court is varied and in-exhaustive. For example, it is an abuse of the court’s process to proceed piecemeal against the same persons or to institute two or more actions against the same persons on the same cause of action or issue. The principle goes thus – if two actions are commenced, the second action asking for a relief(s) which may have been obtained in the first, the second action is prima facie vexatious and an abuse of the process of the court. see NIMB LTD v. UBN LTD (2004) 2 NWLR [pt.888] 599 SC.
Abuse of the court’s process generally means an improper use of the process of court. It includes multiplicity of actions between the same parties and/or their privies on the same matter. Irregular use of court’s process or the use of the court’s process mala fide for the purpose of the irritation and annoyance of the other party also constitutes an abuse of court’s process. See SARAKI v. KOTOYE (2001) FWLR [pt.58] 1127; (1991) 9 NWLR [pt.264] 156; OKAFOR v. A.G., ANAMBRA STATE (1991) 6 NWLR [pt.200] 659; DINGYADI v. INEC (No.2) (2010) 18 NWLR [pt.1224] 154.
Every court of law has a duty, under Section 5 (6) (a) of the Constitution, 1999 to promptly deal with any action before it which it considers to be an abuse of its process by invoking its constitutional powers to dismiss such a process in limine. See SULLIVAN CHIME v. DUBEM ONYIA (2009) 2 NWLR [pt.1124] 1; SARAKI v. KOTOYE (supra). In addition to these inherent powers of court under the Constitution to deal with actions that may constitute an abuse of the process of the court; there are specific provisions in the Federal High Court (Civil Procedure) Rules, 2009 which empower the court to deal with abuse of process. See Order 13, Rule 20, order 16 Rule 2 (1), (2) and (3), and order 26 Rule 1. They provide –
Order 13, Rule 20:
The court may at any time, on the application of either party, strike out any pleading or any part thereof, on the cause of action, or no defence to the action, as the case may be, or the ground that it is embarrassing, or scandalous or vexatious, or an abuse of the process of the court; and the court may either give leave to amend the pleading, or any proceed to give judgment for the plaintiff or the defendant, as the case may be, or may make such other order, and upon such terms and conditions, as may seem just.
Order 16, Rule 2;
(1): A party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the Judge who tries the cause at or after trial.
(2) A point of law so raised may, by consent of the parties, or by order of the court or a Judge in chambers on the application of either party, be set down for hearing and disposed of at any time before the trial.
(3) If, in the opinion of the court – the decision on the point of law substantially disposes of the whole action, or of any distinct cause of action, – the court or Judge in chambers may thereupon dismiss the action or make such other order therein as may be just.
Order 26, Rule 1:
subject to these Rules, interlocutory applications may be made at any stage of an action.
The core or central issue in the two suits nos FCT/HC/CV/180/2011 and FHC/ABJ/CS/807/2011 is the candidature or mandate of the 4th Respondent herein on the platform of the present Appellant. In both suits it was averred that the 4th Respondent, having emerged earlier as a person democratically elected or nominated as a candidate of the present Appellant, he remains or shall be regarded as remaining the only candidate of the Appellant in Kogi State for election of the Governor of the State. In the suit no FCT/HC/CV/180/2011 the present 4th Respondent was the sole plaintiff. The respondents defending that suit were (1) INEC, (2) Resident Electoral Commissioner (REC) Kogi State and (3) The PDP (the present Appellant). In the suit No FHC/ABJ/CS/807/2011 that the present 4th Respondent had been made the 2nd Applicant to prosecute, the respondents defending that suit include (1) INEC, (2) the REC for Kogi state (3) PDP (the Appellant herein) and (4) Capt. Idris Wada (the present 5th Respondent). The 1st and 4th Respondents have argued forcefully that the joinder of the present 4th Respondent as 2nd Applicant in the later suit no FHC/ABJ/CS/807/2011 does not render the subsequent suit an abuse of the court’s process because the parties, in the earlier suit no FCT/HC/CS/807/2011, are not the same, and that there could be no abuse of process where the party commencing the latter suit is not a party to the former suit. But the Appellant, who is complaining of the abuse of the process of the court is a party common to the suits, like the present 4th Respondent, as the plaintiff in both actions.
The 1st and 4th Respondents have also argued, on authority of GANI FAWEHINMI v. NBA (No.2) (1989) 2 NWLR [pt.105] 494 at 550, that a non party to an action can not be guilty of abuse of court’s process. That is true. And it follows that the party who could be guilty of abuse of the court’s process is the party who is maintaining multiple actions at the same time against the same parties as defendants in both multiple suits or actions.
The problem created by the joinder of the 4th Respondent as the 2nd Applicant in the suit no FHC/ABJ/CS/807/2011, when his earlier suit is still subsisting against the same 3 defendants, as respondents, who are also the defendants plus Capt. Idris Wada, is that, as argued by the Appellant, by his joinder in suit no FHC/ABJ/CS/807/2011, that action, by virtue of the subsistence of the ealier suit no FCT/HC/CV/180/2011, is now an abuse of the court’s process. Therefore, if, by his joinder, as the plaintiff or Applicant in FHC/ABJ/CS/807/2011, he becomes guilty of abuse of court’s process, then at that point or stage, since the trial court had inherent, as well as constitutional or statutory powers to prevent the abuse of its process the trial court ought reasonably to have refused the joinder of the present 4th Respondent as the 2nd Applicant in the suit no FHC/ABJ/CS/807/2011.
Every court has powers to refuse to make an order that is an exercise in futility and serving no useful purpose. The argument of the 1st and 4th Respondents to the effect that, whereas the earlier suit no FCT/HC/CV/180/2011 could be decided without INEC, as a defendant; INEC is a necessary party in the latter suit no FHC/ABJ/CS/807/2011, is of no moment. The pertinent question the learned trial Judge could have asked and answered is – what does it profit the 4th Respondent to be made the 2nd Applicant in suit no FHC/ABJ/CS/807/2011 if he is being joined as the 2nd Applicant therein would render the action liable to dismissal for abuse of the process of the court? Appellants have made a point here.
In the uncontroverted counter-Affidavit of the 3rd Respondent/Appellant it was averred inter alia that –
1. the 4th Respondent herein wanted to join as the co-plaintiff/party in the suit no FHC/ABJ/CS/807/2011.
ii. the 4th Respondent herein was already the plaintiff/party in FCT/HC/CV/180/2011.
iii. the cause of action and subject matter in suit no FCT/HC/CV/180/2011 and this case FHC/ABJ/CS/807/2011 are the same as they relate to Kogi State primary election for the Governorship seat of Kogi State.
iv. both the 4th Respondent herein, as Applicant, and the 3rd Respondent the Appellant herein are parties in the said suit no FCT/HC/CV/180/2011;
v. the joinder of the 4th Respondent herein was only to provide him another forum/option, in the possible event that the judgment in FCT/HC/CV/180/2011 – Exhibit PDP -1, would not favour him;
vi. granting the application and joining the 4th Respondent herein as 2nd Applicant in FHC/ABJ/CS/807/2011 will amount to harassment of the 3rd Respondent, the present appellant, and
vii. the suit no FHC/ABJ/CS/807/2011 was calculated merely to annoy and irritate the 3rd Respondent, the present Appellant.
These facts are not disputed. The law is settled that facts not disputed, denied or controverted are deemed as admitted. See AJOMALE v. YADUAT (No.2) (2003) FWLR [pt.182] 1913 at 1925; OGAR v. JAMES (2001) 10 NWLR [pt. 722] 621 at 639. These undisputed or unchallenged facts are hostile to the 4th Respondent. They affirm the alleged abuse of the process of the court.
I have demonstrated either on the doctrine of Quia timet or by the extant Rules of practice of the trial court that the learned trial Judge was wrong in holding as he did that the issue of abuse of the court’s process was raised, at the time it was raised, quite prematurely. I have also demonstrated that there is merit or substance in the issue of the 4th Respondent’s, as 2nd Applicant, suit no FHC/AB J/CS/807/2011 constituting an abuse of the court’s process in view of the subsistence of his earlier suit no FCT/HC/CV/180/2011, in which he was the sole plaintiff.
The sanction against an action constituting an abuse of the process of the court is as stated in ONYEABUCHI v. INEC (2002) FWLR [pt.103] 453 at 469 A, i.e.:
Once a court is satisfied that the proceedings before it amounts to an abuse of process, it has right, infact a duty, to invoke its coercive powers to punish the party (who) is in abuse of process. Quite often, that power is exercisable by a dismissal of the action which constitutes the abuse.
The 4th Respondent’s suit no FHC/ABJ/CS/807/2011 wherein he was joined as the 2nd Applicant is hereby dismissed for being an abuse of the court’s process.
The issue of the 1st Respondent, as the original sole applicant in the suit no FHC/ABJ/CS/807/2011, allegedly lacking the locus standi to institute the action as at 20th September, 2011 when he filed the action is premised on the authorities of MADUKOLU v. NKEMDILIM (1962) ALL NLR 581 at 589 – 590, and A.D. v. FAYOSE (2005) 10 NWLR [pt.932] 151 at 177 -178 which lay down the principle that the court is competent to entertain an action if among other things –
i. it is properly constituted with respect to the number and qualification of its members;
ii. the subject matter is within its jurisdiction;
iii. the action was initiated by due process of law; and
iv. the condition precedent to the exercise of its jurisdiction has been fulfilled.
The contention of the Appellant is that in the entire depositions and facts relied upon by the 1st Respondent, he never claimed to be a contestant in the primaries conducted by the Appellant, the PDP, to elect its candidate to contest in the election of the Governor of Kogi State. The 1st Respondent, as such certainly had no locus standi to file the suit no FHC/ABJ/CS/807/2011 at the time he did, Appellants argue. Accordingly, they argue that the want of locus standi denies the trial court the necessary jurisdiction to entertain the suit. The Appellants rely on OWODUNNI v. REGD TRUSTEES OF CCC (2000) 10 NWLR [pt.675] 315 at 338 and 357; BEWAJI v. OBASANJO (1999) 7 NWLR [pt.611] 353 at 386, and BM LTD v. WOERMANN-LINE (2009) 13 NWLR [pt.1157] 160 at 199 for this.
Appellants argue further that it is the pleadings and the claims/reliefs in relation to the parties that the court examines inorder to determine if it has jurisdiction, and that the relevant time is “as at the time of filing the case” Section 87 (10) of the Electoral Act, 2010 (as amended) limits the locus standi to challenge the candidature of a party’s candidate to “an aspirant” who complains that the provisions of the Act and the party’s electoral guidelines. Appellants argue. It is further contended that since the locus standi of the 4th Respondent was absent ab initio, the subsequent joinder of the 4th Respondent as the 2nd Applicant did not save the bad situation.
It is apparent from the Brief of Argument of the 1st and 4th Respondents that they did not pretend or insist that the 1st Respondent had locus standi to institute the action at the time he did on 20th September, 2011. Nowhere in the brief did they argue that cause. The facts adumbrated in the joint brief of 1st and 4th Respondents are merely that the 4th Respondent was duly elected as the PDP’s candidate in the first primary election; that Appellant submitted the name of the 4th candidate for the Governorship election; that consequently INEC issued the Nomination Forms to the 4th Respondent, which he filled and returned to INEC as the PDP’s only candidate for the office of Governor of Kogi State, and that by dint of Sections 33 and 35 of the Electoral Act, 2010, as amended, INEC can only allow substitution upon the death or formal withdrawal of his candidature by the 4th Respondent.
My Lords, the 1st and 4th Respondents did not join issues with the Appellants on whether the 1st Respondent disclosed his standing or locus standi to bring forth this suit, the subject of this appeal. This silentio is clearly an abdication of the Respondent’s duty under Order 18 Rule 4 (2) of the Court of Appeal Rules, 2011. The respondent in his brief shall answer all material points of substance contained in the Appellant’s Brief. The brief of the respondent shall also contain all points in the appellant’s brief that the respondent wishes to concede. A respondent, who refuses or neglects to answer any material point raised by the appellant and who also fails to indicate that he concedes the point, is deemed to have conceded the point, is deemed to have conceded that point. See ADESAMUA v. OTUEWU (1993) 1 NWLR [pt.270] 414. This however will not preclude us from looking at his pleadings and claims at the lower court to determine if he infact disclosed his locus standi to commence and maintain this action at the time he filed it on 20th September, 2011. The locus standi or the standing in law to initiate or institute proceedings in a court of law is the legal capacity and the condition precedent to initiate or institute proceedings in the law court for the determination of whatever legal rights or obligations being asserted. The determination of the question whether the plaintiff has or has disclosed his standing in law to initiate the legal proceedings is quite distinct from the merits of the case. At this stage it is not necessary to consider whether there is a genuine case on the merits. Where the plaintiff fails to disclose his standing or capacity to initiate the legal proceedings against another the suit or action is incompetent and must be struck out: see OWODUNNI v. REG. TRUSTEES OF CCC (supra).
The fact upon which the 1st Respondent, as the sole applicant in suit no FHC/ABJ/CS/807/2011, brought his application for judicial review and upon which leave was granted for him to bring forth application for judicial review are at pages 5 -7 of the Record of Appeal, both pages inclusive. The same facts are replicated or reproduced at pages 86 – 88 of the same Record, after the 4th Respondent had been made the 2nd Applicant in the same suit no FHC/ABJ/CS/807/2011. The 1st Respondent herein, either as the sole Applicant or 1st Applicant, was described as a Nigerian, citizen of Kogi State, a registered voter and a financial cum card carrying member of the Peoples Democratic Party (PDP), the present Appellant and the 3rd Respondent at the lower court. He was allegedly a voting delegate at the Appellant’s State Congress held between 4th and 9th January, 2011, from which the 4th Respondent herein was elected as the PDP nominee to be sponsored as the Governorship candidate. He was aware of the Federal High Court judgment of 23rd February, 2011 that held that the tenure of office of the erstwhile Governor of Kogi State, Ibrahim Idris, would end on 30th April, 2012. To his “surprise and chagrin” INEC released a new time table in line with the judgment of the Federal High Court on 23rd February, 2011. He argues that “the notice of election issued by (INEC) can only be relevant in circumstance to parties who have hitherto not conducted their party primaries for the selection of its (sic) governorship candidates for the general elections”, that no “extant law or rule – prohibits the early holding or conduct of party primaries”, and that “the Electoral Act only place (sic) restriction on the latest date the name of the candidate a political party is sponsoring shall be submitted” to INEC, and further that holding “another party primaries will mean subjecting him and other delegates to a new round of anxiety, financial burden and hardship.”
The 1st Respondent, as either the sole applicant or the 1st applicant, was not claiming any relief directly for his personal benefit. It is clear that he claims the reliefs as a foot soldier and/or proxy of Alhaji Jibrin Isah, the present 4th Respondent. The grounds for the application at pages 8 and 9 and pages 89 and 90 of the Record clearly reveal that the 1st Respondent herein, either as the sole applicant or 1st Applicant in the suit no FHC/ABJ/CS/807/2011, in initiating this suit, was not doing so for the determination of his civil rights and obligations against the named defendants in that suit. In virtue of Sections 5 (6) (b) and 36 (1) of the Constitution of the Federal Republic of Nigeria every person coming to a law court to invoke its judicial powers is obligated to disclose his locus standi or legal standing to initiate and maintain the action. Locus standi of the litigant is a condition precedent for invoking the jurisdiction of the law court. The necessary intendment for this condition precedent is to sieve and separate genuine litigants from mere busy bodies or impulsive Don Quixotes who may be more mindful to be seen only to fight other people’s course against imaginary “enemies.” The essence of locus standi rule is to protect the court from being used as a playground by professional litigants, busy bodies, meddlesome interlopers and cranks who have no real legal stake or interest in the subject matter of the litigation they pursue. See BEWAJI v. OBASANJO (2008) 9 NWLR [pt.1093] 540 relying on ADESANYA v. THE PRESIDENT (1981) 2 NCLR 358 and FAWEHINMI v. AKILU (1987) 4 NWLR [pt.67] 97.
This Court in BEWAJI v. OBASANJO (supra) at 573 has held that where the locus standi of the plaintiff is or has been challenged, he has the onus to establish that he has sufficient legal interest in the matter. See also OLANIYAN v. ADENIYI (2007) 3 NWLR [pt.1020] 1. Before us here the locus standi of the 1st Respondent, as the applicant in the suit no FHC/ABJ/CS/807/2011 has been challenged. Yet, in the brief filed on his behalf, no effort was made to discharge that onus.
From the facts upon which the 1st Respondent, as the applicant or 1st applicant at the trial court, had brought the action and my analysis of the Grounds for the Application the 1st Respondent was nothing but a meddlesome Don Quixote “fighting” a proxy war for the 4th Respondent herein, the man called ALHAJI JIBRIN ISAH. As at the time of commencing and even up to the time of the purported joinder of Alhaji Jibrin Isah, as the 2nd Applicant, to salvage the incompetent suit the 1st Respondent herein was not clothed with locus standi to approach the Federal High Court so as to invoke its judicial powers for the determination of his civil rights and obligations consistent with Sections 6 (6) (b) and 36 (1) of the Constitution. As my learned brother Omoleye, JCA stated in BEWAJI v. OBASANJO (supra) at 578, the issue of locus standi is a two-pronged issue of jurisdiction. If the claimant or plaintiff has no locus standi or the legal standing to institute an action, then he has no constitutional or legal right to seek redress in the law court under the Constitution. The second prong of the issue is that the absence of that legal standing to sue or seek redress in the law court also denies to the court of law itself the jurisdiction to entertain and determine the suit or action. And that is because the court itself has no jurisdiction to entertain the action or claim when inter alia the suit comes before it not initiated by due process of the law. See MADUKOLU v. NKEMDILIM (supra).
Clearly, the 1st Respondent had not commenced or initiated the suit FHC/ABJ/CS/807/2011 as “an aspirant who complains that any of the provisions of [the Electoral Act, 2010, as amended] and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election” under Section 87 (10) of the Electoral Act, 2010, as amended. That provision vests locus standi on the aspirant who complains that in nominating or selecting the candidate of a political party for an election the provisions of the Electoral Act and the electoral guidelines of his political party had not been complied with. On the contrary, in this suit the 1st Respondent, like the 4th Respondent, is insisting that the Appellant and INEC are functus officio since in the earlier selection as the Appellant’s candidate all due processes were followed. I agree with the Appellant that the 1st Respondent, not being an aspirant, has no locus standi to invoke the jurisdiction of the court to complain that the Appellant, a political party, has no right to start the process of nominating or selecting its candidate after the first exercise had apparently been jettisoned following a court judgment that says there was no vacancy in the office to warrant the election contemplated by the earlier nomination or selection exercise. The 1st Respondent does not claim that he had locus standi, by dint of Section 87 (10) of the Electoral Act, 2010 to commence the suit no FHC/ABJ/CS/807/2011. He had none under that provision. The suit of the 1st Respondent, as the applicant, at the time it was initiated or commenced was incompetent as 1st Respondent had no locus standi to initiate or commence and maintain it. This fact consequentially deprived the Federal High Court the necessary jurisdiction to entertain it. Apropos, the suit is accordingly struck out. The suit was void ab initio and dead on arrival. At the time the learned trial Judge purportedly joined the 4th Respondent as the 2nd applicant there was no suit or action legally to which the said 1st Respondent could have been made party or 2nd Applicant thereto. And even at that, I had earlier demonstrated that fact of the subsistence of the earlier suit no FCT/HC/CS/180/2011 made the suit of the 4th Respondent, as the 2nd applicant in suit no FHC/ABJ/CS/807/2011, an abuse of the process of the court. Either way, the said suit no FHC/ABJ/CS/807/2011 can not, in its entirety, survive on the cause list of the Federal High Court and it is accordingly, struck out as it pertains to the 1st Respondent herein and dismissed for abuse of court’s process as it pertains to the 4th Respondent herein. That suit was nothing but a mere vexatious and frivolous formulation to waste every body’s useful time. I allow the appeal.
Costs at N100,000.00 jointly and/or severally are awarded against the 1st and 2nd Respondents and shall be paid to the Appellant.
JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Judgment of my learned brother EJEMBI EKO, JCA just delivered and I agree entirely with the reasons given therein and the conclusions reached.
I am also of the view that the Preliminary Objection lacks merit and it is dismissed by me.
Concerning the main appeal it is my view that it is meritorious and it is allowed by me.
I abide by the consequential Orders made in the said lead Judgment.
REGINA OBIAGELI NWODO, J.C.A.: I agree.
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Appearances
Olusoh Oke, Esq. with Oluwaseyi Bamgboye Esq.,For Appellant
AND
Ibrahim Isiyaku, SAN with B.A. Oyefesor, Esq. and N, Emmanuel, Esq. for 1st and 4th Respondents.
J.O. Adele, Esq., with A.E. Adele, Esq. for 2nd and 3rd Respondents.
Doris Chime, Esq. with C.S. Maduka, Esq. and Frank Molokwu, Esq. for 5th Respondent.For Respondent
