Alhaji Umar Musa Yar’adua & Ors. V. Alhaji Atiku Abubakar, Gcon & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, C.J.N.

This is an interlocutory appeal against the Ruling of the Court of Appeal, holden at Abuja delivered on 20th September, 2007 in exercise of its original jurisdiction under section 239(1)(a) of the Constitution wherein the Court dismissed Respondents/Appellants’ Motion on Notice objecting to the Petitioners/Respondents’ Petition and praying the Court to either dismiss or strike it out.

The Ruling of the lower court being appealed can be found on pages 2004 – 2005 of Volume 5 of the records. It is very short and reads thus:-

“It is trite law that in interlocutory stage, issues that call for determination in the main case should be avoided. The issues of joinder and inconsistent claims are not jurisdictional matters but were irregularity which can be sorted at the hearing of the petition. I see no proper challenge of jurisdiction in the two applications. This Court has full jurisdiction to entertain the petition to enable all parties to ventilate their cases on merit. Accordingly, I dismiss both applications”.

While this appeal is still pending in this Court the case proceeded to trial In the Court of Appeal and final judgment was entered against the Petitioners/Respondents on 26th February 2008.

It is clear from the final judgment that counsel on both sides as well as the Court adverted their minds to the interlocutory Ruling above, and that Respondents/Appellants’ motion which was re-argued in fact finally succeed when the Court below struck out the Petitioners/Respondents ALTERNATIVE grounds in the Petition.

I am quite aware of the fact that this aspect of the final judgment is still being challenged in an appeal against the final judgment of the Court of Appeal referred to above. That appeal is not the same as this appeal and I cannot therefore decide the matter here. That is enough by way of introduction.

The Petitioners/Respondents had filed a Notice of Preliminary Objection to this interlocutory appeal on the following ground amongst others-

(a) That Appellants have re-argued the issue-that arose in this interlocutory appeal before the lower court while this appeal was pending.

(b) The decision upon the re-argument was in favour of the appellants.

(c) The decision upon the re-arguing issues were contained in the final judgment of the lower court on 26th February, 2008.

(d) The continued prosecution of this appeal after the favourable judgment to the Appellants in the lower court is all abuse of judicial process.

(e) The abuse constituted in keeping the appeal alive and re-arguing the same issue in the lower court warrants a dismissal of the appeal in line with the decision of this Court in AGWASIM V. OJICHIE (2004) 10 NWLR (Pt. 882) 613 at 622 – 624.

There is an affidavit in support of the Notice of Preliminary Objection. It was sworn to by one Osatobanmwen Akpata one of the Counsel representing the Petitioners/Respondents herein. Paragraphs 3, 4, 5, 6 , 7 , 9 & 10 read as follows-

“3. That the appeal herein was filed on the 20th day of September, 2007 against the ruling of the court of appeal delivered on the same date wherein the preliminary objections of the Appellants/Respondents as respondents to the presidential election petition of the respondents/applicants were dismissed.

4. That briefs were duly exchanged in respect of the Appeal ever before trial in the lower court was concluded and the appellants filed their brief on 10/10/07 while respondents’ applicants filed Respondents brief on 22nd October, 2007.
5. That on the 5th day of February, 2008, despite the pendency of this appeal, the appellants re-argued the objection dismissed in the ruling herein appealed against in their final addresses before the court of appeal.
6. That the decision upon re-arguing the objection was in favour of the Appellants/Respondents.
7. That the decision upon re-arguing the issues was contained in the final judgment of the court delivered on 26th, February, 2008. Attached herewith and marked Exhibit “A1” is the judgment of the court of appeal, where at pages 66 – 72, the objections were considered and upheld.
8. That the continued prosecution of this appeal after the favourable judgment to the Appellants in the lower court is calculated against the Respondents/Applicant and this court to vex, irritate and put the judicial machinery to needless labour and expense.
9. That in the light of the grounds in support of this preliminary objection of which I depose to this affidavit, it will be in the interest of justice to dismiss the Appellants/Respondents’ appeal as an abuse of court process.

The Appellant filed a counter-affidavit through one of their counsel, Oladele Gbadeyan, in opposition virtually admitting that the issues for determination in the interlocutory appeal were extensively re-argued and determined by the Court of Appeal in the final judgment but interlocutory appeal.

I agree completely with the above submissions of counsel to Petitioners/Respondents. The continued prosecution of this appeal by the Appellants in view of available undisputed facts is clearly academic having been overtaken by events and therefore constituted a gross abuse of judicial process (see for example AGWASIM v. OJICHIE (2006) 10 NWLR (PT.882) 613. One may ask- what kind of order do the Appellants want from this court, now that the trial has been wholly completed and judgment delivered Nothing, if I may answer. It is an abuse of process of Court for a plaintiff to re-litigate an identical issue which had been decided against him (sec for example ONYEABUCHI V. INEC: (2002) 8 NWLR (PT. 769) 417 at 443. So also where proceedings which were viable when instituted have by reason of subsequent events become inescapably doomed to failure as in this case. Merely withdrawing the appeal would have saved the appellants from this situation.

The appeal is clearly lifeless, spent, academic, speculative and hypothetical (See UNION BANK OF NIGERIA v. ALHAJA BISI EDIONSERI (1988) 2 NWLR (Pt. 74) 93; OLADE v. EKWELENJU (1989) 4 NWLR (Pt. 115) 326. The Preliminary Objection therefore succeeds. It is allowed.

The appeal is accordingly struck out. I make no order as to costs.

SC.274/2007