THE GOVERNOR OF PLATEAU STATE & ORS v. HON. DR. HITLER DADI & ORS
(2014)LCN/6877(CA)
RATIO
CONSTITUTION: A PUBLIC OFFICER WITHIN THE CONTEXT OF THE LAW
Out of all the cases brought to the attention of the Court the cases of OJUKWU v. YAR’ADUA & ORS (supra) and ORJI v. UGOCHUKWU (supra) appear to me most appealing because they are both decisions of the full panel of this Court and they are directly on the point whether having regards to the provisions of the 1999 Constitution a Governor or a Commissioner is a Public Officer. After referring to the provisions of Sections 176 to 180 and Section 318(1), and the latin maxim:- expression unius est exclusio alterius, Fabiyi, J.C.A. (as he then was) held that the Governor of a State is not included in the list of employees in the public service of a State and therefore would not be an employee in the public service of the State. Also, while relying very heavily on the cases of DADA v. ADEYEYE (2005) 6 NWLR (Pt. 920) 1 at 19-20, ASOGWA v. CHUKWU (2003) 4 NWLR (Pt. 811) 540 at 546 etc, Ibiyeye, JCA in ORJI v. UGOCHUKWU, (Supra) ay 293 A – G, held that an elected Governor of a State and a Commissioner appointed by a Governor are not Public Officers within the meaning of Section 318 (1) of the 1999 Constitution.
Against the foregoing, it would therefore not be correct, as argued by Mr. Gopep of Counsel, that the 1st Appellant is a public officer for all purposes and in all situations. Outside Section 19 of the 5th schedule to the 1999 Constitution, it cannot be argued with any degree of seriousness that the 1st Appellant, in the circumstances of this appeal is a public officer for the purposes of the protection under Section 2(a) of the POPA (Public Officers Protection Act) or Law as the case may be. Also, in view of the decision in ORJI v. UGOCHUKWU (supra) the 2nd Respondent cannot also be a public officer for being a political appointee of the Governor and to the extent of his being a Commissioner in the Civil Service of the State. Per ALI ABUBAKAR BABANDI GUMEL, J.C.A
PRACTICE AND PROCEDURE: WHETHER MULTIPLICITY OF ACTION WOULD CONSTITUTE AN ABUSE OF COURT PROCESS
It is the case of SARAKI & ANOR v. KOTOYE (1992) NWLR (Pt. 264) 156. Where Karibi-Whyte, JSC said that abuse of court process may lie in both a proper or improper use of the judicial process in litigation. His Lordship added that the employment of the judicial process is only regarded generally as an abuse when a party improperly uses it to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. The aspect of abuse of process that is in issue in this appeal is the complaint of the Appellants that the 1st Respondent had brought them before both the Federal High Court, Jos Division and the Plateau State High Court with respect to what they consider and believe to be the same set of facts arising out of the same transaction. In appropriate circumstances multiplicity of actions between the same parties may constitute an abuse of Court process. The decisions in EGBUONU v. B.R.T.C (1997) 12 NWLR (Pt. 531) 29 and ADEYANJU v. WAEC (2002) 13 NWLR (Pt. 785) 479 at 498, referred to at page 23 of the 1st Respondents’ brief do not seem to allow for multiplicity of actions but for a right to choose whether to pursue an action for enforcement of fundamental human rights or a right to a substantive relief connected therewith. These 2 decisions are wholly and totally inapplicable to the facts and circumstances in this appeal. The Supreme Court established and settled the guiding principles for the determination of the question whether the filing of 2 or more actions between the same parties may constitute and abuse of process. Let me recall how it handled this issue in SARAKI Vs KOTOYE. In that case, the Court was unanimous that multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The court explained further that the abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right perse.
In determining the issues of whether there was abuse of Court process or not, the learned trial judge used the number of parties and number of reliefs in the 2 contending suits instituted by the 1st Respondent. Learned Counsel Mr. Gopep faulted this approach of the learned judge. In both SARAKI v. KOTOYE (supra) and UMEH v. IWU (supra), the Supreme Court was dealing with a much more complex situation than in the instant appeal. Nonetheless, I believe learned counsel Mr. Gopep that His Lordship of the lower court was rather too simplistic and perfunctory in the determination of this question.
According to the Supreme Court in UMEH v. IWU (supra) abuse of court process denotes a situation where a party has instituted a multiplicity of actions against the same opponent or opponents in respect of the same subject matter on the same issues. In delivering the lead judgment of the Court, Chukwuma-Eneh, JSC held that to sustain a, charge of abuse of process there must co-exist:-
(a) a multiplicity of suits;
(b) between the same opponents;
(c) on the same subject matter
(d) on the same issues
His Lordship added that all these pre-conditions are mutually inclusive and conjunctive.
In the determination of this issue, the Supreme Court also commends that a court must look at the facts allegedly constituting the abuse because categories of situations and conditions that amount to abuse of process are not closed or exhaustive. Each case must be treated upon its peculiar facts and circumstances. Per ALI ABUBAKAR BABANDI GUMEL, J.C.A
