Senator Mamman Ali V. Senator Usman Albishir & Ors (2007)

LawGlobal-Hub Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

This is an appeal against the judgment of the Federal High Court, Kaduna Division delivered on 19th March 2007 in favour of the 1st and 2nd plaintiffs/respondents granting all the reliefs claimed on their amended originating summons. The appellant herein, who was the 3rd respondent before the trial court was dissatisfied with the decision and filed a notice of appeal dated 20th March 2007 containing four grounds of appeal.

The facts giving rise to this appeal as can be gleaned from the printed record are as follows:

The 1st and 2nd respondents, as plaintiffs at the court below filed an originating summons dated 23rd February 2007 against the 3rd and 4th respondents herein, as defendants. They raised the following questions for determination by the Court:

1. “Whether having regard to the combined effect of the provisions of Sections 36, 177 and 182 of the Constitution of the Federal Republic of Nigeria 1999 and Section 34 of the Electoral Act, 2006 (as amended) the 2nd defendant can without giving any reason whatsoever change the candidature-ship of the plaintiffs as earlier submitted as the gubernatorial flag bearer/running mate for Yobe State in the April 2007 general elections.
2. Whether having regard to Section 36, of the Constitution of the Federal Republic of Nigeria 1999 and Section 34 (2) of the Electoral Act 2006 (as amended) whether without giving any reason at all the 1st defendant can accept any change or substitution with any other person whatsoever.”

They also sought the following reliefs from the court upon the determination of the above questions:

1. “A declaration that the plaintiffs having been lawfully nominated and their candidature accepted by the 1st defendant, they are entitled to fair hearing as to any reason given by the 2nd defendant for their replacement or substitution by any other person.
2. A declaration that the 1st defendant cannot change the plaintiffs as its gubernatorial candidate/running mate for the April, 2007 gubernatorial election in Yobe State without giving any cogent reason.
3. A declaration that the 1st defendant cannot accept any replacement or substitution of the plaintiffs by any person whatsoever without the 2nd defendant giving any cogent reason.
4. A declaration that the failure of the 1st and 2nd defendants to give the plaintiffs an opportunity to defend themselves for by (sic) reason given amounts to denial of fair hearing.
5. An order setting aside any substitution whatsoever made by the 2nd defendant to the 1st defendant as the gubernatorial candidate/running mate in Yobe State.
6. An order of injunction restraining the defendant, their agents or servants from tampering with or doing anything , whatsoever to the names or otherwise of the plaintiffs as already verified and cleared as the gubernatorial candidate/running mate for Yobe State in the April, 2007 general elections.”

On 1st March 2007 the appellant herein filed a motion on notice seeking to be joined as the 3rd defendant in the suit. The application was granted on 5th March 2007.

On 6th March 2007 the plaintiffs filed an application seeking leave to amend their originating summons and for an order deeming the amended originating summons annexed to the supporting affidavit as duly filed and served.

The amended originating summons annexed to the supporting affidavit and marked Exhibit 1 can be found at pages 64-66 of the printed record. The questions for determination as set out therein are as follows:

1. “Whether having regard to the provisions of Section 34 (2) of the Electoral Act 2006 the 2nd defendant can without giving “cogent and verifiable” reason as required by Section 34 (2) of the Electoral Act 2006 or without any reason at all substitute the names of the plaintiffs.
2. Whether having regard to the non-compliance with the condition to give “cogent and verifiable reason” as provided by Section 34 (2) of the Electoral Act 2006 by the 2nd defendant can act on any name as replacement of the plaintiffs.
3. Whether having regard to the non-compliance with the condition to give “cogent and verifiable reason” as provided by Section 34(2) of the Electoral Act 2006 by the 2nd defendant, the plaintiffs are not the duly nominated candidates for the 2007 Gubernatorial Elections in Yobe State under the platform of the 2nd defendant.”

The plaintiffs also sought the following reliefs:

1. A declaration that the 2nd Defendant cannot change the Plaintiffs as its gubernatorial candidate/running mate for the April, 2007 gubernatorial election in Yobe State without giving any “cogent and verifiable reasons or any reason at all.
2. A declaration that 1st Defendant cannot accept any replacement or substitution of the Plaintiffs by any reason whatsoever without the 2nd Defendant giving any cogent and verifiable reasons or any reason at all.
3. An order setting aside the purported substitution made by the 2nd Defendant to the 1st Defendant as the gubernatorial candidate/running mate in Yobe State for non-compliance with the condition set out by S. -34(2) of the Electoral Act 2006.
4. An order of perpetual injunction restraining the Defendant, their agents or servants from tampering with or doing anything whatsoever to the names or otherwise of the Plaintiffs as already verified and cleared as the Gubernatorial Candidate/running mate for Yobe State in the April, 2007 general elections under the platform of the 2nd Defendant.
5. An order or mandatory injunction restraining the 1st defendant from acting on or carrying into effect or doing anything whatsoever or taking any step; on the letter dated 13th February, 2007 relating to the substitution or otherwise of the Plaintiffs/Applications; as the Yobe State Gubernatorial Candidates under the platform of the 2nd defendants.
6. An order of interlocutory injunction restraining the first defendant from acting or further acting on or in any way publishing any names other than those of the Plaintiffs herein as the candidate of the second defendant for the 2007 Governorship Elections in Yobe State whether in pursuance of section 35 of the Electoral Act or otherwise howsoever or in anyway printing or publishing the names and photographs of any other persons as the candidates of the second defendant for” the 2007 Governorship Elections in Yobe State on the ballot paper or any other document however.

The 3rd defendant (the appellant herein) also on 6th March 2007 filed a notice of preliminary objection and a memorandum of conditional appearance to the suit. He filed a 6-paragraph supporting affidavit with numerous exhibits annexed thereto. He also filed a further and better affidavit in support of the preliminary objection on 8th March 2007. The grounds for the preliminary objection at pages 99-100 of the record are as follows:

1. “That this action is an abuse of court process as same issue had been decided by the Federal High Court, Maiduguri Judicial Division in suit No. FHC/MG/CS/8/2007.
2. That this action ought to have been commenced by way of writ of summons and not by originating summons.
3. That this action is an invitation to the court to resolve internal dispute of the 2nd defendant as to who should be its gubernatorial candidate in Yobe State.
4. That plaintiffs names were dropped by the 2nd defendant because they were indicted by the Economic and Financial Crimes Commission and the 2nd defendant would have lost an opportunity to field a gubernatorial candidate for Yobe State if they were not substituted before 14/02/2007, and the plaintiffs were informed by the 2nd defendant before they were substituted.
5. That this action has been overtaken by events as the time within which to submit final list of candidates for the election to INEC closed on 14/2/2007 and Senator Mamman Ali duly confirmed by INEC far before this action was instituted.”

The court heard and granted the application for leave to amend the originating summons on 9th March 2007. On the same day, after granting the application for amendment the court ordered that both the preliminary objection and the amended originating summons should be argued together.

On 19th March 2007 the learned trial Judge, in a considered judgment, overruled the preliminary objection and entered judgment in favour of the plaintiffs on their amended originating summons granting all the reliefs claimed. It is against this judgment that the appellant has appealed to this court.

The grounds of appeal without their particulars, as contained at pages 183-185 of the record, are as follows:

1. The learned trial judge erred in law in entertaining the plaintiffs claim when the Honourable court had no jurisdiction to hear the claim the matter being an abuse of the court process.
2. The learned trial judge erred in law in assuming territorial jurisdiction in this matter without regards to Order 11 of the Federal High Court Rules 2000 despite his attention being drawn to it.
3. The learned trial judge erred in taw in proceeding with the matter to hearing when the originating summons and other processes was (sic) not served on the 3rd defendant/appellant after being joined as a party.
4. The learned trial judge erred in law where he insisted that the preliminary objection of the 3rd defendant/appellant be taken together with the amended originating summons of the plaintiff which was just granted without affording the appellant an opportunity to file counter affidavit thereby occasioning a miscarriage of justice.

It is pertinent to note at this stage that the appellant herein has since been sworn in as the Governor of Yobe State.

On 12/6/07, pursuant to an application filed by the appellant, this court granted an accelerated hearing of this appeal. The time within which the parties were to file their respective briefs of argument was accordingly abridged. In the appellant’s brief dated 8/5/07 and filed on 9/5/07 three issues were formulated for the determination of the appeal:

1. Whether non-service of the originating summons issued on the 23rd February 2007 and service of un-issued amended originating summons on the appellant’s counsel is not a fundamental defect that robs the court of competence and jurisdiction to proceed with the matter to hearing.
2. Whether the commencement of suit No. FHC/KD/CS/42/2007 before Federal High Court Kaduna Division by the plaintiffs/respondents on the 23rd February 2007 while same matter was struck out in Suit No.FHC/MG/CS/08/2007 on the 21st February 2007 for want of jurisdiction before the Federal High Court Maiduguri Division and an appeal is pending against the ruling does not amount to an abuse of court process.
3. Whether the order of the court directing the appellant to argue the preliminary objection together with the amended originating summons at the time the amendment was granted without affording the appellant time to file his counter affidavit does not amount to denial of fair hearing which occasioned miscarriage of justice.

The 1st and 2nd respondents filed a joint brief of argument dated and filed on 3/7/07. They distilled the following three issues for determination:

1. Whether having regard to the facts and circumstances of this appeal, particularly the specific order of the trial court deeming the amended originating summons as having been duly filed and served, the appellant’s complaint of non-service of both the original and the amended originating summons in this suit is justified. (3rd ground of appeal).
2. Whether the institution of this suit before the Kaduna Division of the Federal High Court amounts to an abuse of court process in view of an earlier suit instituted before the Maiduguri Division of the Federal High Court to which the appellant was not a party and which has since been struck out by that Court. (1st ground of appeal).
3. Whether in the circumstances of this case the decision of the trial court after granting amendment of the originating summons to hear arguments on both the preliminary objection and the substantive originating summons in view of the urgency involved in the matter was not a proper exercise of his judicial discretion and whether his doing so occasioned any miscarriage of justice since the appellant did not complain at the material time.

The 1st and 2nd respondents also filed a notice of preliminary objection dated and filed on 3/7/07 and advanced arguments in respect thereof in their brief of argument. The appellant filed a reply brief dated and filed on 6/7/07 in reaction to the preliminary objection.

The 3rd respondent’s undated brief of argument filed on 2/7/07 was deemed filed on 9/7/07. No issue for determination was formulated in the said brief. The 4th respondent’s brief is dated and filed on 2/7/07. It was also deemed filed on 9/7/07.

Two issues were formulated for the determination of the appeal thus:

1. Whether the learned trial Judge erred in law in entertaining the 1st and 2nd respondents’ claim when the Honourable Court had no jurisdiction to hear the claim, the matter being an abuse of court process.
2. Whether the appellant who was joined as a party to the proceedings was entitled to be personally served with all the courts processes to enable him file a counter affidavit and defend himself.

We heard this appeal on 9/7/07. Mr. Emmanuel Toro, SAN moved his preliminary objection dated and filed on 3/7/07, which was argued in the 1st and 2nd respondents’ brief of argument. He adopted the submissions ,in respect of the preliminary objection as contained in the said brief and urged us to uphold the objection and strike out the appeal accordingly. He made further submissions to amplify some of the issues raised in the brief. These will be considered at an appropriate stage in the course of the judgment.

Mr. Rickey Tarfa, SAN adopted the appellant’s reply brief in response to the preliminary objection. He urged us to dismiss the objection and allow the appeal. He also expatiated on some of the issues addressed in the reply brief.

In the alternative, the learned senior counsel for the appellant adopted the appellant’s brief in respect of the main appeal and urged us to allow the appeal. He submitted that the 3rd and 4th respondents, in their respective briefs of argument are attacking the judgment of the court below. He argued that they cannot validly do so without filing a respondent’s notice. He relied on the Supreme Court decision in: Adenuga Vs Odumeru (2003) 8 NWLR (821) 163 at 181 F-G.

Mr. N.H. Auta, learned counsel for the 3rd respondent adopted the 3rd respondent’s brief and urged us to allow the appeal. He submitted that there is no requirement in the Court of Appeal Rules for the filing of a respondent’s notice in order to attack the judgment of the trial court.

Mr. B.E. Offiong, learned counsel for the 4th respondent, adopted the 4th respondent’s brief. He aligned himself with the submissions of learned senior counsel for the appellant in respect of the preliminary objection and urged us to allow the appeal and set aside the judgment of the trial court.

Mr. Tarfa urged us to discountenance the objection raised by Mr. Toro with regard to the 3rd and 4th respondents’ briefs on the ground that the learned senior counsel ought to have filed a formal notice of objection or sought leave to do so. He referred to Order 3 Rule 15 of the rules of this Court.

As the 1st and 2nd respondents filed a notice of preliminary objection, which raises the issue of the jurisdiction of this Court to hear the appeal, it would be prudent to consider it first before going into the merits of the substantive appeal. The preliminary objection is based on two main premises:

1. “That the appeal is unconstitutional having regard to the provisions of Section 308 of the Constitution of the Federal Republic of Nigeria 1999 (the Constitution), in that the appellant who was a defendant in the court below in his private or personal capacity has now assumed office as the Governor of Yobe State and now enjoys immunity under the aforementioned section of the Constitution, which absolutely prohibits this Court from entertaining this appeal. Alternatively,
2. That grounds 1, 3 and 4 of the notice of appeal should be struck out on the following grounds:

i. The appellant applied to the trial court and was granted leave to join the suit as 3rd defendant in his private personal capacity.

ii. It is a notorious fact, and there is affidavit evidence on record before the Court of Appeal that the Appellant has since assumed office as the Governor of Yobe State by virtue whereof he enjoys the immunity conferred on him by Section 308 of the Constitution of the Federal Republic of Nigeria 1999.

iii. That as regards ground 2, the Appellants having omitted or neglected to raise or formulate any issue for determination encompassing the said ground of appeal, it is deemed abandoned and should be struck out or discountenanced.

IV. That grounds 2, 3 and 4 are incurably incompetent and should be struck out because none of them relates to or arises from the judgment of the trial court which is appealed against to the Court of Appeal.

v. That particular (b) of ground 3 is inconsistent, offensive to and incompatible with the principal complaint in the ground of appeal and should therefore be struck out or discountenanced.

VI. That the said grounds numbers 2, 3 and 4 raise issues which were not raised before t he court below and are therefore incompetent or invalid unless prior leave of the Court of Appeal to raise them has been obtained by the Appellant.

vii. Arising from all the foregoing the said grounds numbers 2, 3 and 4 are invalid and therefore the said grounds together with any issue formulated or distilled from them coupled with submissions thereon are ipso facto invalid or incompetent and should be struck out or discountenanced.”

In arguing the first leg of the preliminary objection predicated upon Section 308 of the Constitution, learned senior counsel for the 1st and 2nd respondents submitted that it raises the threshold issue of the competence and jurisdiction of this court to entertain the appeal. On the fundamental nature of jurisdiction and the effect of its absence in adjudication, he cited various decisions of the appellate courts such as: Madukolu Vs Nkemdilim (1962) 1 All NLR 587 at 595; (1962) 2 SCNLR 341 at 348; Utih & Ors. Vs Onoyivwe & Ors. (1991) 1 NWLR (166) 1666 at 206 A-B. Learned senior counsel submitted that the preliminary objection is anchored solely on the plaintiffs’ originating summons and the documents annexed to the supporting affidavit. He submitted that the court is entitled to refer to documents on record in the case file to arrive at a decision. He relied on: Ideh Vs Onyejese (1997) 8 NWLR (518) 610 at 630 B-C; Funduk Eng. Ltd. Vs Mc/Arthur (1995), 4 NWLR (392) 640 at 652 F-G; Abraham v. Olorunfunmi (1991) 1 NWLR (165) 53 at 77-78 H-F. He submitted further that the preliminary objection on jurisdiction; is extrinsic to any adjudication. He relied on: NDIC v. C.B.N. (2002) 7 NWLR (766) 272 at 296 B-E, 296 – 297 F-A; A-G. Federation v. A.N.P.P (2003) 18 NWLR (851) 182 at 207 A-D.

Learned counsel submitted that as a sitting Governor of Yobe State, the office presently occupied by the appellant is one of the offices expressly mentioned in Section 308 of the Constitution as enjoying constitutional immunity for the duration of his term of office. He referred to the case of Tinubu Vs IMB Securities Plc (2001) 16 NWLR (740) 670 at 688 B-C, 690 E and 695 A-C on the meaning and scope Of Section 308 and submitted that the circumstances of the present appeal fall squarely within the ambit of the provisions of Section 308 as pronounced upon by the Supreme Court in Tinubu’s case. He also referred to: Umanah Vs Attah (2005) 12 NWLR (938) 103 at 118-119 H-E; Umanah Vs Attah (2004) 7 NWLR (871) 63 at 99-100 E-F; I.C.S. (Nig.) Ltd. Vs Balton (2003) 8 NWLR (822) 223 at 234-235 B-E; Media Tech (Nig.) Ltd. Vs Adesina (2001) 16 NWLR (908) 461. He submitted that the present proceedings are normal civil proceedings and do not relate to an election petition proceeding. He submitted further that it is only in election petition proceedings that the immunity provisions of the constitution have been held to be inapplicable, having regard to the fact that an election petition has been held to be sui generis and therefore not considered to be either a civil proceeding in the ordinary sense or a criminal proceeding. In support of this submission he relied on: Buhari Vs Yusuf (2003) 14 NWLR (841) 446 at 498 -499 E-B; Awuse Vs Odili (2004) 8 NWLR (876) 481 at 519 F & 524 D-F; A.D. Vs Fayose & Ors. (2004) 8 NWLR (876) 639 at 653 G-H & 654 E-F. He urged the court to decline jurisdiction to entertain the appeal and to strike it out.

In his oral submissions at the hearing of the appeal, learned counsel submitted in reaction to the submissions in paragraphs 3.07 and 3.21 of the appellant’s reply brief that the immunity provided for in Section 308 is an absolute prohibition to the court from entertaining any matter concerning a sitting governor for the term of his office. He submitted that it does not matter whether the case emanates from an interlocutory or a final decision. He relied on Tinubu’s case (supra) at 696-697 D-D & 707-708 D-D. He urged us to discountenance the distinction that the appellant tried to make in this regard).

On the alternative leg of the preliminary objection, particularly grounds (iii) – (vii) learned senior counsel submitted that the 3rd ground of appeal complains about non-service on the appellant of the originating summons and other court processes after he was joined as a defendant in the suit at the trial court. He observed that particular (b) of the said ground contends that the amended originating summons was not issued. He submitted that particular (b) is fundamentally’ different from the main complaint in ground 3. He submitted that where the particulars of a ground of appeal are inconsistent with the principal complaint in the ground, the particular must be struck out or discountenanced. In support of this submission he relied on:

Shuaibu Vs U.B.N. Ltd. (2001) 10 SCNJ 1: Briggs Vs C.L.O.R.S.N. (2005) 12 NWLR (938) 59; Honika Sawmill (Nig.) Ltd. Vs Mary Okojie Hoff (1994) 2 SCNJ 86 at 93 lines 28-30. He also urged us to discountenance the submissions in respect of the non-issuance of the amended originating summons as contained in the appellant’s brief. On the binding effect of pleadings and grounds of appeal he relied on: National Investment Co. Ltd. Vs The Thomson Organisation Ltd. & Ors. (1969) A.N.L.R. 134 at 138 para 4.

With regard to grounds 2, 3 and 4 he submitted that they are incompetent and should be struck out or discountenanced because they do not relate to or arise from the judgment appealed against. He relied on the following cases to support this contention: F.M.B.N. Vs N.D.I.C. (1999) 2 SCNJ 5: G.C. Apunonu Vs Beakart Overseas & Ors. (2000) 7 SCNJ 105; Akibu & Ors. Vs Oduntan & Ors. (2000) 7 SCNJ 189; Briggs Vs C.L.O.R.S.N. (supra); Saraki & A nor.Vs Kotoye (1992) 11/12 S.C.N.J. 26.

He submitted that the main complaint in the appellant’s notice of preliminary objection before…the trial court, at pages 99-100 of the record, is contained in ground 2 thereof, which contended that the action ought to have been commenced by way of writ of summons and not by originating summons. He contended that in his written address in support of ground 2 of the preliminary objection, at pages 166-168 and oral submissions at pages 207 -209 of the record, the learned counsel for the appellant/3rd defendant made submissions regarding the issuance and/or signing of the originating summons, which was a radical departure from the objection raised by him. He submitted that ground 3 is incurably defective and should be struck out.

Learned senior counsel submitted that grounds 2, 3 and 4 raise new issues that were not raised or canvassed at the trial court nor adjudicated or pronounced upon by that court. He submitted that the appellant is not permitted to depart from the case as presented before the lower court without prior leave sought and obtained. He referred to: Isulighi (Nig.) Ltd. Vs Jackson (2005) 11 NWLR (937) 631; Oredoyin Vs Arowolo (1989) 4 NWLR (114) 172 at 192 E-F; Carlen (Nig.) Ltd. Vs University of Jos & Anor. (1994) 1 SCNJ 72; He submitted that grounds 2, 3 and 4 and the issues framed from them are incompetent and should be struck out or discountenanced. He referred to: Akibu Vs Oduntan (supra); Mark Elele & Ors. Vs Nwerekere &. Ors. (1998) 3 SCNJ 84 & Thor Ltd. Vs FCMB Ltd. (2002) 4 NWLR (757) 427 at 446 C-D.

In reply to the first leg of the preliminary objection, Mr. Tarfa, learned senior counsel for the appellant submitted that a careful reading of Section 308 shows that it does not preclude the appellant, who was sworn in as the Governor of Yobe State from exercising his constitutional right of appeal as provided for in Sections 241, 242 and 243 of the Constitution. He referred to the case of: Media Tech (Nig.) Ltd. Vs Adesina (2005) 1 NWLR (908) 461 and submitted that the: operative word in Section 308 (1) is “against”. He contended that it provides a shield from the institution of any civil or criminal proceedings against the holders of the offices of President, Vice President, Governor or Deputy Governor while their tenure subsists. He submitted that Section 308 does not deprive the holders of the offices mentioned in Section 308 (3) of their right to institute actions. He referred’ to the unreported decision of this court in: A.G Federation & 2 Ors. Vs Alhaji Atiku, Abubakar: Appeal No. CA/A/21/07 delivered on 5/4/07.

He distinguished Tinubu’s case from the facts of this appeal on the ground that Tinubu’s case was an interlocutory appeal with the substantive suit still pending before the trial court. He argued that the instant appeal is against the final judgment of the Federal High Court, Kaduna. He submitted that the decision in Tinubu’s case did not contemplate that the officers listed in Section 308 (3) could not institute actions against persons in pursuance of their constitutional right to do so while their tenure subsists. He contended further that there is no provision in Section 308, which expressly or impliedly creates a disability in the person granted immunity to preclude such person from instituting a legal action against another party. In support of his submissions he relied on: Media Tech (Nig.) Ltd. Vs Adesina (supra).

In his oral submissions at the hearing of the appeal he submitted that Tinubu’s case is also distinguishable from the present case because that case was purely contractual. He referred to: A.D. Vs Fayose (supra), and submitted that although it was an election petition, the Court of Appeal held that the immunity granted by Section 308 cannot be used against the holder of the office named in Section 308 (3) where the matter before the court is an election related matter. He urged us to discountenance the arguments in support of grounds 1 and 2 of the preliminary objection.

With regard to grounds 2, 3 and 4 he submitted that the said grounds raise issues of jurisdiction, which can be raised at any time during trial or on appeal, even to the Supreme Court. He submitted that the leave of court need not be sought and/or obtained. He relied on: Jeric (Nig.) Ltd. Vs U.B.N. Plc (2000), 15 NWLR (691) 447 at 457 A-S; Bronik Motors Ltd. Vs Wema Sank Ltd. (1983) 1 SCNLR 296; Ministry of Works Vs Tomas (Nig.) Ltd. (2002) 3 NWLR (752) 740 at 767 A-B. In the course of his oral submissions at the hearing of the appeal he also relied on the case of: Ideh Vs Onyejese (1997) 8 NWLR (518) 610.

In the alternative he referred to the judgment of the trial court at pages 225-245 of the record and submitted that what is being appealed against is the decision reached in the judgment wherein the learned trial judge dismissed the defendant’s preliminary objection and granted the plaintiffs’ reliefs. He submitted that grounds 2, 3 and 4 are competent and that the issues distilled from the said grounds are also competent. He further urged us to discountenance ground (iii) of the preliminary objection and to hold that it has been abandoned since no arguments were proffered in respect thereof in the 1st and 2nd respondents’ brief.

The crux of the first leg of the preliminary is the interpretation and applicability or otherwise of 308 of the Constitution to the appellant herein who, subsequent tot he institution of the suit before the trial court successfully contested the April 2007 gubernatorial election in Yobe State and has since been sworn into office as the Governor of that state.

Section 308 of the Constitution provides:

“308. (1) Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section –

(a) no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office;

(b) a person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise;

(c) no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued;

Provided that in ascertaining whether any period of limitation has expired for the purposes of any proceeding against a person to whom this section applies, no account shall be taken of his period of office.

(2) The provisions of subsection (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party.

(3) This section applies to a person holding the office of President or Vice-President, Governor or Deputy Governor; and the reference in this section to “period of office” is a reference to the period during which the person holding such office is required to perform the functions of the office.”

The provisions of Section 308 of the Constitution have been subjected to judicial interpretation in a plethora of decisions of our appellate courts. Learned senior counsel for the appellant and the 1st and 2nd respondents have made copious references to the Supreme Court decision in Tinubu Vs IMB Securities Plc. (supra)., It is therefore apt to begin by considering the findings made in that case. At the trial court the respondent sued the appellant for the outstanding balance in respect of an overdraft facility it granted to him. In the course of proceedings, the appellant filed an application praying for the suit to be dismissed or struck out on certain grounds. The court struck out the application after considering the submissions of counsel. The appellant was dissatisfied with the interlocutory decision and appealed against it to the Court of Appeal. While the appeal was pending, the appellant successfully contested election to the office of Governor of Lagos State and was accordingly sworn into that office on 29th May 1999. When the appeal came up for hearing learned counsel for the respondent applied for the appeal to be adjourned sine die on the ground that the civil proceedings could no longer be continued against the appellant in view of the express provisions of Section 308 (1) of the Constitution. It was also contended that the hearing of the interlocutory appeal would amount to a continuation of the main suit against the appellant. The Court of Appeal adjourned the appeal sine die until such time as the appellant shall have ceased to hold office as Governor of Lagos State.

The appellant was dissatisfied with the decision and appealed to the Supreme Court.

The Supreme Court per Iguh, JSC at pages 693-694 G-A & D-E held thus:

“It is admitted by both sides that the appellant, as at the time the decision of the Court of Appeal was handed down, was and still remains the Governor of Lagos State. Section 308 (1) (a) of the Constitution of the Federal Republic of Nigeria 1999 provides in the clearest possible language that notwithstanding anything to the contrary in that Constitution, no civil or criminal proceedings shall be instituted or, if already instituted, continued against any person to whom that section of the Constitution applies during his period of office. As already indicated, section 308 (3) provides

that the said section 308 of the 1999 Constitution applies to a person holding the office of President or Vice-President, Governor or Deputy Governor.

The appellant remains the Governor of Lagos State till this day. The claim against him did not arise by virtue of any act executed by him in his official capacity as Governor of Lagos State nor was he, as the said Governor, sued in the action as a nominal party. It is thus clear that applying the mandatory provisions of section 308 (1) (a) of the 1999 Constitution, no civil proceedings may be instituted, or if already instituted, as in the present action, shall be continued against him while he holds the office of Governor of Lagos State. See Colonel Olu Rotimi & Ors. Vs Macgregor (1974) 11 S.C. 133 or (1994) 9 N.S.C.C. 542.”

At page 695 A -C (supra) His Lordship further expatiated on the issue as follows:

“In my view, the immunity granted to the incumbent of the relevant office under section 308 (1) (a) of the Constitution prescribes an absolute prohibition on the courts from entertaining any proceedings, civil or criminal, in respect of any claim or relief against a person to whom that section of the Constitution applies during the period he holds such office …. In my view the Court of Appeal was absolutely right to have declined to entertain the appellant’s appeal pending before it as to do otherwise would amount to continuing the plaintiff/respondent’s suit against the defendant/appellant, a suit which under section 308 (1) (a) of the 1999 Constitution shall not be continued against the appellant while he remained the Governor of Lagos State.”

The decision in Tinubu’s case has been followed in a number of decisions of this court, including: I.C.S. (Nig.) Ltd. Vs Balton (2003) 8 NWLR (822) 223; Media Tech (Nig.) Ltd. Vs Adesina (2005) 1 NWLR (908) 461; Umanah Vs Atta (2005) 12 NWLR (938) 103; and the unreported case of A.G. Federation & Ors. Vs Alhaji Atiku Abubakar in Appeal No. CA/A/21/07 delivered on 5/4/07.

Learned senior counsel for the 1st and 2nd respondents has argued on the authority of Buhari Vs Yusuf (supra), Awuse Vs adili (supra) and A.D. Fayose (supra) that election petitions have been held to be sui generis, the implication of which is that the provisions of Section 308 do not apply to an incumbent of any of the offices specified in section 308 (3) with respect to an election petition. He argued that the present proceedings are normal civil proceedings and do not relate to an election petition proceeding and therefore section 308 is applicable.

Relying on the authority of Media Tech (Nig.) Ltd. Vs Adesina (supra) and the unreported case of A-G Federation & Ors. Vs Alhaji Atiku Abubakar (supra), learned senior counsel for the appellant maintained that there is no provision in section 308, which expressly or impliedly constitutes a disability on the person granted immunity to preclude such person from instituting an action against another party. He also contended that the operative word in section 308 (1) (a) is

“against”, which provides a shield from the institution of any civil or criminal proceedings against the holders of the offices stated in section 308 (3).

It is not in dispute that the appellant, who was joined as the 3rd defendant in the suit before the trial court in his personal or private capacity has since been sworn in as the Governor of Yobe State. Thus the first issue to be determined is whether section 308 (1) (a) of the Constitution precludes the appellant from prosecuting this appeal and thereby ousts the jurisdiction of this court to entertain it. Although section 308 has been comprehensively reproduced earlier in this judgment, it is relevant for ease of reference to repeat section 308 (1) (a), which provides:

“308. (1) (a) No civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office.”

In the interpretation of constitutional provisions the courts have always been enjoined to adopt a liberal approach and in so doing to give the provisions an interpretation that accords with the intentions of the framers of the document. See: Ibrahim Vs Barde (1996) 9 NWLR (474) 513 at 577 B-C; Ahmed Vs Kassim (1958) SCNLR 58; Ojokolobo Vs Alamu (1987) 3 NWLR (W 377 at 402 F-H. A careful examination of the entire provisions of section 308 (1) and (2) suggests that the intendment of the framers of the Constitution was to provide a shield for the President, Vice-President, Governor or Deputy Governor from frivolous or vexatious litigation in respect of personal or criminal proceedings that would distract him from the serious business of governance. Indeed the Supreme Court per Karibi-Whyte, JSC in Tinubu’s case (supra) at 708 C-D stated thus:

“The provision of section 308 is a policy legislation designed to confer immunity from civil suit or criminal process on the public officers named in section 308 (3) and to insulate them from harassment in their personal matters incurred before their election.”

His Lordship, Belgore, JSC (as he then was) at page 714 held:

“The reason for the protection of the person given the immunity in section 308 of the Constitution is to afford him quiet tenure free from harassment on personal matters rather than matters of office. It is to afford the person complete devotion to the high office, which pertains to the welfare and stability of governance” In my respectful view, it is clear from the rationale for Section 308 as explained by the learned jurists above, that the immunity provided for therein is to protect the incumbent from civil or criminal proceedings being instituted “against” him in his personal capacity while in office. In effect the provision acts as posed earlier as to whether the appellant, as Governor of Yobe State is precluded under section 308 from instituting an action against any person during his period of office, the Supreme Court per Ayoola, JSC had this to say at page 721-722 H-A & E:

“I am unable to construe a provision of the constitution that granted an immunity such as section 308 (1), as also constituting a disability on the person granted immunity w hen there is no provision to that effect, either expressly or by necessary implication in the enactment. If the makers of the Constitution had wanted to prohibit a person holding the offices stated in section 308 from instituting or continuing action instituted against any other person during his period of office, nothing would have been easier than to expressly provide that: “No civil or criminal proceedings shall be instituted or continued against any person by a person to whom this section applies during his period of office; and no civil or criminal proceedings shall be instituted or continued against such person during his period of office;.” or in like terms. The makers of the Constitution did not in their wisdom so provide.

In my judgment the whole tenor of section 308 points to a prohibition of proceedings against a person to whom the section applies and not a prohibition of proceedings by him. Both in section 308 (1) (a) and the proviso to section 308 (1) (c) the operative word “against” was present.”

I am guided by the above decision of the Supreme Court in the instant case. I agree with learned counsel for the appellant, that as there is no express or implied provision in section 308 of the Constitution prohibiting the holder of any of the offices named in section 308 (3) of the Constitution from instituting civil or criminal proceedings in his personal capacity against any person, the immunity provided in section 308, which shields him from the institution of civil or criminal proceedings against him during his tenure of office cannot be invoked against him in the exercise of his rights as provided for in sections 241, 242 and 243 of the Constitution. See also: Media Tech (Nig.) Ltd. Vs Adesina (supra) at 474-475 G-A and A-G Federation & Ors. Vs Alhaji Atiku Abubakar (unreported) (supra).: The first leg of the preliminary objection is therefore overruled.

The second and alternative leg of the preliminary objection relates to the competence of the grounds of appeal. At the hearing of the appeal, Mr. Tarfa, SAN observed a discrepancy between the grounds of appeal being challenged as stated on the face of the notice (grounds 1, 3 and 4) and as specified in the particularised grounds of objection numbered (iii) – (vii) (grounds 2, 3 and 4). Having carefully examined grounds (iii) – (vii) of the objection and the submissions contained in the 1st and 2nd respondents’ brief, it is clear that the grounds of appeal being challenged are grounds 2, 3 and 4.

Learned senior counsel submitted that particular (b) of ground 3 of the notice of appeal is inconsistent with the complaint in the main ground of appeal and should therefore be discountenanced. Ground 3 of the notice of appeal reads thus:

“3. The learned trial judge erred in law in proceeding with the matter to hearing when the originating summons and other processes was (sic) not served on the 3rd defendant/appellant after being joined as a party.

Particulars of Error

a) There was no service of the originating summons and other court processes on the 3rd defendant/appellant after being joined as 3rd defendant in the matter.

b) The amended originating summons was not issued.

c) The leave sought by plaintiff/respondent before the trial court in their motion was for leave to file and serve the amended originating summons and deeming same and not to be deemed issued.”

(Emphasis supplied)

Learned senior counsel for the 15t and 2nd respondents contended that the issuance of an originating process and service thereof are separate issues with different rules governing them under the Federal High Court (Civil Procedure) Rules 2000. He noted that while Orders 6, 7 and 8 deal with the issuance of originating processes, Order 13 deals with service of process. It was held in: N.P.A. Vs Eyamba (2005) 12 NWLR (939) 409 at 446 A that the issuance of a writ of summons (or other originating process) and the service thereof are separate and distinct steps in a proceeding. See also: Broad Bank of Nig. Ltd. Vs Alhaji S. Olayiwola & Sons & Anor. (2005) 1 S.C. (Part II) 1 at 12 lines 25-39. It follows therefore that a particular of error complaining about the non issuance of the amended originating summons does not flow from the main ground of appeal complaining of non-service of the said process.

The law is that the particulars of a ground of appeal should not be an independent complaint from the ground of appeal itself but should be ancillary to it. See: Globe Fishing Ind. Ltd. Vs Coker (1990) 7 NWLR (162) 265 at 300; Honika Sawmill (Nig.) Ltd. Vs Hoff (1994) 2 NWLR (326) 252; Briggs Vs C.L.O.R.S.N. (2005) 12 NWLR (938) 59 at 90 F-H. I hold that both particulars (b) and (c) of ground 3 are inconsistent with the main complaint in ground 3 and must be discountenanced. See: Honika Sawmill (Nig.) Ltd. Vs Hoff (supra). However ground 3 can be sustained by particular (a) thereto. The objection with respect to ground 3 therefore partially succeeds with regard to particulars (b) and (c) only.

Consequently the submissions relating to the non-issuance of the amended originating summons in the appellant’s brief will be disregarded.

The other contention in relation to grounds 2, 3 and 4 is that they raise fresh issues, which were not raised at the court below and no leave was sought to raise them before this court.

Learned senior counsel for the appellant submitted that the grounds raise the issue of jurisdiction, for which the leave of court need not be sought or obtained. He also maintained that the issues were in fact raised before the trial court. He referred to the judgment of the court at pages 225-245 of the record.

Ground 3 of the notice of appeal complains of non-service of the originating summons and other processes on the 3rd defendant/appellant after he was joined as a party to the suit.

Ground 4 complains of a miscarriage of justice occasioned by the fact that the learned trial judge ordered that the preliminary objection and the originating summons, which had just been amended, should be argued together and did not afford the appellant the opportunity to file a counter affidavit thereto.

Ground 3 raises the issue of non-compliance with a condition precedent to the competence of the court to adjudicate on the matter. It goes to the root of the entire proceedings and the jurisdiction of the court to entertain the action. Ground 4 raises the issue of fair hearing. The law is settled that any proceedings conducted without fair hearing are a nullity no matter how well conducted they might have been. See: Orugbo Vs Una (2002) 9-10 S.C. 61 at 69 lines 1-21; Ceekay Traders Ltd. Vs General Motors Co. Ltd. (1992) 2 NWLR (222) 132.

It is equally settled by a long line of authorities that the issue of jurisdiction can be raised at any stage of the proceedings before the trial court and even for the first time on appeal before the Supreme Court. Such issue of jurisdiction can be raised with or without leave. See: Obiakor & Anor. Vs The State (2002) 10 NWLR (776) 612 at 626 G, where the Supreme Court per Kalgo, JSC held:

“The general principle is that when a party seeks to file and argue in this court any fresh issue not canvassed in the lower courts, whether the issue pertains to law or otherwise, leave to file and argue the issue must be had and obtained first. But where the point or issue sought to be raised pertains to issue of jurisdiction, the point or issue can properly be filed and argued with or without the leave of court even if it is being raised for the first time.” (Emphasis supplied).

See also: Gaji Vs Pave (2003) 8 NWLR (823) 583; Oyakhire Vs The State (2006) 7 SCNJ 319 at 327 line 36 – 328 line 2. In the circumstances I hold that since the complaints in grounds 3 and 4 raise the issue of jurisdiction, the appellant can raise it for the first time before this court without first obtaining leave to do so. The objection to grounds 3 and 4 is therefore overruled.

With regard to ground 2 of the notice of appeal, as observed by learned senior counsel for the appellant, no argument was advanced in the 1st and 2nd respondents’ brief on ground (iii) of the preliminary objection. Be that as it may, the appellant did not formulate any issue in respect thereof. The ground is therefore deemed abandoned and accordingly struck out. See: Hajaig Vs Hajaig & Ors. (2004) ALL FWLR (207) 697 at 709-710 H -A; Ibrahim Vs Mohammed (2003) 2 S.C. 127 at 140; Elahor Vs Osayande (1992) 6 NWLR (249) 524 at 534. The alternative leg of the preliminary objection therefore succeeds in part only with regard to particulars (b) and (c) of ground 3. In conclusion I hold that grounds 1, 3 and 4 of the notice of appeal are competent.

I shall now consider the merits of the substantive appeal, which will be determined on the issues formulated by the appellant. Issue 1 is as follows:

“Whether non-service of the originating summons issued on the 23rd February 2007 and service of un-issued amended originating summons on the appellant’s counsel is not a fundamental defect that robs the court of jurisdiction to proceed with the matter to hearing.”

In his brief of argument, learned senior counsel for the appellant submitted that the appellant’s application for joinder was granted by the trial court on 5/3/07 without a consequential order that the processes so far filed in the suit be served on him. He submitted that having been joined as a party, the appellant filed a notice of preliminary objection and entered a conditional appearance to the suit on the same 5/3/07. He submitted that the issue of service of court process is so fundamental that non-compliance is capable of rendering the proceedings or any step taken therein a nullity. He argued further that the fact that the defendant knows or is informed that a suit has been filed against him does not dispense with the need to serve him with the originating processes. He referred to: Bayero Vs F.M.B.N. Plc. (1998) 2 NWLR (538) 523-524 H-A; Otobaimere Vs Akporehe (2004) (894) 591 at 610-611; B & B Construction Ltd. Vs Ahmed (1998) 9 NWLR (566) 489 at 494 B-C. Learned senior counsel submitted that on 9/3/07 the court granted the respondents/plaintiffs’ motion on notice dated 6/3/07 to amend the originating summons and to deem the annexed amended originating summons properly filed and served. He contended that it was the appellant’s counsel who was served with the motion, to which the amended originating summons was attached as an exhibit and not the appellant himself. He submitted that Order 13 Rule 2 of the Federal High Court Rules is mandatory with regard to the service of originating processes.

Learned senior counsel submitted that personal service of the originating process on the appellant is a condition precedent to the exercise of jurisdiction by the court. He submitted that a procedural irregularity, which renders the proceedings incurably defective, may not be waived as acquiescence cannot confer jurisdiction. He relied on the case of: Leedo Presidential Motel Vs B.O.N. Ltd. (1998) 10 NWLR (570) 353 at 391 B-C.

In response to the first issue for determination, learned senior counsel for the 1st and 2nd respondents submitted that the appellant has no complaint against the originating summons filed on 23rd February 2007, and did not oppose the respondents’ application for leave to amend, the originating summons and to deem as duly filed and served the amended originating summons filed along with the application. He submitted that the amended originating summons dates back to when the originating summons was taken out at the court below. He relied on: Jatau Vs Ahmed (2003) 4 NWLR (811) 498 at 511 B-C. In the alternative he submitted that any procedural irregularity could be cured by the provisions of Order 3 Rule 1 (1) of the Federal High Court Rules. On the intendment of the aforesaid provision of the rules of court, he cited the Supreme Court decision in: F.G.N. Vs Zebra Energy Ltd. (2002) 18 NWLR (798) 162 at 204-205 E-A. He also relied on: Egolum Vs Obasanjo (1999) 7 NWLR (611) 355; Broad Bank of Nigeria Ltd. Vs Alhaji’ S. Olayiwola. & Sons Ltd. (2005) 3 NWLR (912) 434 at 450-458 E-C; Dapianlong Vs Dariye (2007) 8 NWLR (1036) 332 at 416 0; Progress Bank (Nig.) Plc. Vs Contact Point Holding (1998) 1 NWLR (532) 38 AT 47-48 C-D; Yusuf Vs Obasanjo (2003) 16 NWLR (847) 554 at 609-611 G-G & 623-624 E-A.

It is pertinent to note at this stage that the 3rd and 4th respondents in their respective briefs of argument support the case of the appellant in toto. In adopting their respective briefs of argument, Mr. Auta and Mr. Offiong urged us to allow the appeal. At the hearing of the appeal, Mr. Toro, SAN raised an objection to the s aid briefs on the ground that the 3rd and 4th respondents ought to have filed a respondent’s notice since they were attacking the judgment appealed against. I am in full agreement with Mr. Tarfa, learned senior counsel for the appellant that Mr. Toro was not entitled to raise an objection to the 3rd and 4th respondents’ briefs at the hearing of the appeal without having first filed a notice of preliminary objection in respect thereof or obtaining leave to raise the issue at the hearing. The 3rd and 4th respondents were clearly taken by surprise. Notwithstanding the view I have expressed, the 3rd and 4th respondents have clearly aligned themselves with the case put forward by the appellant. They must therefore sink or swim with him. In the circumstances no useful purpose would be served by considering the submissions contained in the said briefs of argument. They shall accordingly be discountenanced in the consideration of this appeal.

In his reply brief, learned counsel for the appellant submitted that the rules of court should be obeyed. He cited the case of: Oforkire Vs Maduike (2003) 5 NWLR (812) 166 at 181 C-F. He submitted that strict compliance with the rules makes for quicker administration of justice. He relied on: Dambam Vs lele (2000) 11 NWLR (678) 413.

The law has been settled by a host of decided authorities from our superior courts of record that the service of an originating process on a party is fundamental and goes to the root of the competence and jurisdiction of the court to adjudicate in the matter. The failure to serve the adverse party renders the proceedings and any orders based thereon nullities.

See: Kalu Mark & Anor. Vs Gabriel Eke (2004) 1 SCNJ 245; Odutola Vs Kayode (1994) 4 SCNJ 1; Leedo Presidential Motel Ltd. Vs B.O.N. Ltd. (1998) 10 NWLR (570) 353 at 381 B; Skenconsult (Nig.) Ltd. Vs Ukey (1981) 1 S.C. 6 at 27.

In the instant case I have carefully examined the printed record and have been unable to find anywhere in the proceedings of 5/3/07 where an order was made directing the service of all the processes in the suit, including the originating summons filed on 23rd February 2007, on the appellant. There is also no affidavit of service in the record in that regard.

Between 5/3/07 and 9/3/07 when the order for amendment was made, the originating summons that initiated the suit was a valid process before the court and ought to have been served on the appellant. Even if the appellant was aware of the pending suit, once he became a party, he was entitled to be served with all the processes filed so far, including the originating process to enable him know the details of the claim and to react thereto effectively. See: Otobaimere Vs Akporehe

(2004) 14 NWLR (894) 591 at 611 B & H.

Service of the originating process on the appellant being an issue that touches on the jurisdiction of the court is not one of the procedural lapses that could be cured by having recourse to Order 3 Rule 1 (1) of the Federal High Court Rules. I am also of the humble view that while it is correct that a subsequent amendment dates back to the date of filing the original process, the amendment in this case could not cure the fundamental vice, which had afflicted the suit by the failure to serve the originating process on the appellant after he was joined in the suit. Indeed the failure to serve the appellant with the originating summons filed on 23rd February 2007 before 9/3/07, robbed the court of jurisdiction to entertain the action, and rendered the subsequent proceedings and order made on 9/3/07 a nullity.

The first issue is accordingly resolved in favour of the appellant.

The second issue for determination is:

“Whether the commencement of suit no.

FHC/KD/CS/42/2007 before the Federal High Court, Kaduna Division by the plaintiffs/respondents on the 23rd February 2007 while the same matter was struck out in suit no.

FHC/MG/CS/08/2007 on the 21st February 2007 for want of jurisdiction before the Federal High Court Maiduguri Division and an appeal being pending (sic) against the ruling does not amount to an abuse of court process.”

It is submitted in the appellant’s brief that the 1st respondent herein as plaintiff instituted an action before the Federal High Court Maiduguri Division in Suit No. FHC/MG/CS/08/2007 and also filed a motion for interlocutory injunction. The motion for interlocutory injunction is at pages 128-132 of the record. The Maiduguri Division of the Federal High Court heard arguments on the motion and in a considered ruling delivered on 21/2/07 struck out the application along with the main suit on grounds of lack of jurisdiction. The plaintiff/1st respondent was dissatisfied with the ruling and filed a notice of appeal to the Jos Division of the Court of Appeal on 22/2/07. Learned senior counsel submitted further that notwithstanding the above stated facts, the 1st and 2nd respondents herein on 23/2/07 commenced the same suit before the Kaduna Division of the Federal High Court by originating summons in suit no. FHC/KD/CS/42/2007 while the appeal before the Court of Appeal, Jos is still pending. He submitted that the appellant herein consequently filed a notice of preliminary objection contending that the suit before the Federal High Court, Kaduna Division was an abuse of court process. He referred to the ruling of the trial court at pages 235- 236 of the record and submitted that a court of coordinate jurisdiction cannot set aside a decision of its brother court. He relied on: N.D.I.C. Vs Savannah Bank of Nigeria Plc. (2003) 1 NWLR (801) 311; Awuse Vs Odili (2003) 18 NWLR (851) 116.

He stated that the Maiduguri suit is between Senator Usman Albishir Vs (1) Independent National Electoral Commission (INEC) (2) All Nigeria Peoples Party (ANPP) while the Kaduna suit is between Senator Usman Albishir, with the addition of his running mate Senator (Dr.) Lawan J. Zarami Vs (1) INEC (2) ANPP. He submitted that the reliefs sought by Senator Albishir in the Maiduguri suit, which can be found at page 141 of the record, are the same as the reliefs sought in the Kaduna suit, which are set out on page 3 of the record. He submitted that the only difference in the parties is the presence of the appellant who joined the suit as an interested party being the person who replaced Senator Albishir. He contended that the two suits have the same parties, subject matter and seek the same reliefs.

On what constitutes abuse of court process reference was made to the case of: Newswatch Communications Ltd. Vs Atta (2000) 2 NWLR (646) 592. He argued that having been joined as a co-defendant the appellant has the locus to challenge any irregularity in the proceeding, which might occasion a miscarriage of justice. He submitted further that the institution of the Kaduna suit was an attempt to foist a fait accompli on the Court of Appeal, Jos. Learned senior counsel argued that where a suit is struck out the litigant has the option to re-list it or to appeal against the order striking it out. He contended that as the respondents had opted to appeal against the decision, filing the instant suit before the court below amounted to forum shopping. He relied on: Unifam Vs Oceanic Bank Plc. (2005) 3 NWLR (911.) 83 at 99-100 H-D; Bakare Vs Apena (1986) 17 N.S.C.C. (Part II) 935 at 940, 941, 943 and 952.

In response to the submissions of learned senior counsel for the appellant on this issue, learned senior counsel for the 1st and 2nd respondents contended that the appellant was not a party to the Maiduguri suit and therefore lacks the locus standi to complain about abuse of process. He maintained that he has not been prejudiced or vexed in any way. He referred to the Supreme Court decision in: Amaefule Vs State (1988) 2 NWLR (75) 128 at 156 at 177 B-F; Okafor Vs A.G. Anambra State (1991) 6 NWLR (200) 659 at 671 D-G. On what constitutes abuse of court process he relied on the following cases: Opekun Vs Sadig (2003) FWLR (150) 1654 at 1661 GH; B.O.N. Vs Abiola (2007) 1 NWLR (1014) 23 at 41 D-E; Saraki Vs Kotoye (1992) 11/12 SCNJ 26 at 48 lines 19-36; 49 lines 34-43 & 50 lines 1-5. Learned senior counsel submitted that the 1st and 2nd respondents invoked the jurisdiction of the Kaduna division of the Federal High Court to protect the rights vested in them by section 34 of the Electoral Act 2006. He further maintained that there was nothing to show that they were actuated by malice or that they acted recklessly or frivolously so as to constitute an abuse of judicial process. He relied on: Unifam Ind. Ltd. Vs Oceanic Bank Int’l (Nig.) Ltd. (2005) 3 NWLR (911) 83 at 100 E-F; C.B.N. Vs Ahmed (2001) 11 NWLR (724) 369 at 409-410. He distinguished the case of N.D.I.C. Vs Savannah Bank of Nig. (supra) from the facts of the present case on the ground that in the N.D.I.C. case two suits were pending simultaneously before the Lagos and Abuja Divisions of the Federal High Court and the parties and subject matter were the same.

Learned senior counsel for the appellant in his reply brief submitted that incidents of abuse of court process are not restricted to cases involving the same parties. He referred to the case of: Agwasim Vs Ojichie (2004) 10 NWLR (882) 613 and submitted that once the issues involved in the actions and the desired result are the same there is an abuse of process of court.

The questions for determination and the reliefs sought in the suit before the Federal High Court Kaduna, which gave rise to this appeal have been comprehensively set out earlier in the judgment. I have examined the originating summons in suit no. FHC/MG/08/2007, which can be found at pages 140 -141 of the record. The questions for determination and the reliefs sought in both suits are the same. The only difference is the use of expressions in the plural as it relates to the plaintiffs in the Kaduna suit to accommodate the addition of the 2nd plaintiff who was the 1st plaintiff’s running mate.

On what constitutes abuse of court process, the Supreme Court in the case of: Amaefule Vs State (1988) 2 NWLR (75) 128 at 177 C-F per Oputa, JSC stated thus:

“Abuse of process of the Court is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. Abuse of process can also mean abuse of legal procedure or improper use of legal process. The term abuse of process has an element of malice in it. It thus has to be a malicious perversion of a regularly issued process, civil or criminal, for a purpose and to obtain a result not lawfully warranted or properly attainable thereby.”

In: Saraki Vs Kotoye (1992) 9 NWLR (264) 156 at 188-189, Karibi-Whyte, JSC had this to say:

“The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. … The employment of judicial process is only regarded generally as an abuse when the party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See Okorodudu v. okoromadu (1997) 3 S.C. 21; Oyagbola v. Esso West African inc (1996) 1 All NLR 170.”

The Supreme Court in: Agwasim v. Ojichie (2004) 10 NWLR (882) 613 at 622-623 F-B appreciated that fact that abuse of judicial process may occur in various ways. From the authorities referred to above it is also evident that abuse of process may consist of the proper or improper use of judicial process with the intention to irritate or annoy an opponent or to interfere with the due administration of justice. It was held in: Ogoejeofo v. Ogoejeofo (2006) 1 SCNJ 69 at 79 lines 34 -39 that the abuse lies in the multiplicity and manner of the exercise of the right to institute an action rather than the exercise of the right per se. There would be no abuse of process where a party exercise his right of action bona fide. See: Unifam Ltd. v. Oceanic Bank Intil. (Nig) Ltd. (2005) 3 NWLR (911) 83 at 100 E – H.

In the instant case the 1st respondent’s suit before the court Maiduguri was struck out for want of jurisdiction. He immediately appealed against the decision to the court of appeal sitting in Jos. The day after filing his notice of appeal he instituted the suit that gave rise to this appeal before the court in Kaduna, adding his running mate as a co-plaintiff. The issue that arises therefore is whether the allegation of abuse of process is properly made out having regard to the fact that the 2nd respondent was not a party to the action at Maiduguri and the appellant was joined as a party to the suit in Kaduna after it had been instituted. The Abuja Division of this court had cause to consider a similar situation in the case of: Minister for Works Vs Tomas (Nig.) Ltd. (2002) 2 NWLR (752) 740 at 780 E-H and 785 E-H. The respondents had sued the appellant before the Federal High Court Abuja seeking certain reliefs in respect of the management and control of toll plazas nationwide. The appellant filed a notice of preliminary objection to the suit contending that the court had no jurisdiction to entertain the matter and also that there was a subsisting suit pending before the Federal High Court in Lagos. The respondents had earlier obtained ex-parte orders of injunction restraining the appellant from taking possession of the toll plazas. The court overruled the preliminary objection and held that it had jurisdiction and that there was no abuse of process.

The appellant appealed against the decision to the Court of Appeal and the matter was stayed pending the appeal. The exparte orders were not discharged. The respondents thereafter filed a notice of discontinuance at the trial court and simultaneously filed a notice of preliminary objection at the Court of Appeal seeking the striking out of the appeal on the ground that the appeal was an academic exercise and that the court lacked jurisdiction to entertain it.

The court held that although the reliefs in the two suits were worded differently, the subject matter was the same and the end result of both suits was the same. The court observed that if the plaintiff was granted the reliefs sought in the Lagos suit, he would have achieved his aim. The court also held that the fact that there were additional parties in the Lagos suit was immaterial because the parties in the Abuja case would be bound by the decision of the Lagos case if it were to succeed. It therefore held that the institution of the Abuja case amounted to an abuse of process.

I am guided by this decision in the present case. As stated earlier the subject matter of both suits is the same and so also are the reliefs sought. Since the 2nd plaintiff in the Kaduna suit is the running mate of the plaintiff in the Maiduguri suit, it could hardly be said that the parties are different. In both suits the subject matter is the propriety of the substitution of the gubernatorial candidate and running mate for Yobe State (the 1st and 2nd respondents) with the appellant herein and the interpretation of Section 34 (2) of the Electoral Act 2006. The appellant herein was joined as a party to the Kaduna suit. The appeal before the Court of Appeal in Jos is still pending. He would certainly be affected by the outcome of the appeal since he is the person who replaced the 1st respondent. I am therefore of the view that notwithstanding the fact that the appellant was not a party to the Maiduguri suit, being a party to the Kaduna suit he has the locus to raise the issue of abuse of process.

Now in the Maiduguri case, the learned trial judge held that he had no jurisdiction to hear and determine the action. It is a court of concurrent jurisdiction with the Federal High Court, Kaduna, which heard the case on its merits. Once the court had held that it had no jurisdiction to hear the case, a court of concurrent jurisdiction could not then entertain it. The only option open to the aggrieved party was to appeal against the decision. See: Abubakar Vs Bebeji Oil and Allied Products Ltd. & Ors. (2007) 2 S.C.N.J. 170 at 202; N.D.I.C. Vs S.B.N. Plc. (2003) 1 NWLR (801) 311. Indeed the 1st respondent promptly filed a notice of appeal against the decision. To have subsequently instituted another action before the same Federal High Court sitting in another division for the same reliefs while the appeal was still pending, in my humble view, was an attempt to interfere with the due administration of justice by overreaching the Court of Appeal sitting in Jos. I am also of the view that the institution of the suit before the Federal High Court, Kaduna was done mala fide. I therefore hold that the institution of the proceedings before the Federal High Court Kaduna amounted to an abuse of process and the said court ought not to have entertained it. The second issue for determination is accordingly resolved in favour of the appellant.

The effect of my findings in respect of issues 1 and 2 is that the learned trial judge lacked jurisdiction to entertain the suit before him. In the circumstances I am of the view that a consideration of the third issue for determination would amount to an academic exercise.

In conclusion therefore the appeal succeeds and is hereby allowed. The judgment of the Federal High Court in Suit No. FHC/KICS/42/2007 per Liman, J delivered on 19/3/07 is hereby set aside. The suit is accordingly struck out for lack of jurisdiction. Costs of N10, 000.00 are awarded in favour of the appellant against the 1st and 2nd respondents.

I make no order for costs against the 3rd and 4th respondents.

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Other Citations: (2007)LCN/2489(CA)