Chief Victor Umeh & Anor. V. Professor Maurice Iwu (Chairman Independent National Electoral Commission) & Ors. (2006)
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OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.
This is an interlocutory appeal against the Ruling of the Federal High Court Abuja wherein the learned trial judge declined to terminate the plaintiffs/respondents suit on the ground that it constituted an abuse of court process. The plaintiffs now 3rd and 4th Respondents in this appeal in their amended statement of claim asked the court for the undermentioned reliefs against the Respondents jointly and severally as follows:-
(1) A declaration of this honourable court that pursuant to Article 18(1) of the constitution of the All Progressive Grand Alliance (APGA) the 1st plaintiff is entitled to, enjoy a constitutionally guaranteed chairmanship of tile party for an initial four year term commencing from 10th of January 2003 till 10th January 2007 – which term is still unexpired and which term is optionally renewable.
(2) A declaration of this honourable court that the defendants lack the competence under the Constitution of the Federal Republic of Nigeria 1999, the Electoral Act 2002 and the Constitution of All Progressive Grand Alliance (APGA) to interfere in any manner whatsoever with the position of the 1st plaintiff as the National Chairman of the 2nd plaintiff and lack the power to change or attempt to change the leadership of the 2nd plaintiff political party.
(3) A declaration of this Honourable Court that the provisions of Part III of the Electoral Act, 2002 do not empower the defendants to deal with and or attempt to confer recognition on any other person as National Chairman or Acting National Chairman of the 2nd plaintiff contrary to the provisions of the party’s constitution duly lodged and registered with the defendants as required and stipulated by the Constitution of the Federal Republic of Nigeria, 1999.
(4) A declaration of this Honourable Court that the defendants are not entitled to ignore and cannot ignore the list of names and addresses of the national officers of a political party registered with them pursuant to section 222(a) of the Constitution of the Federal Republic of Nigeria, 1999.
(5) A declaration of this Honourable Court, that the defendants are not entitled to violate the provisions of the Constitution of the plaintiffs duly registered with the Constitution of the Federal Republic of Nigeria, 1999 relating to the democratic mode of change of leadership of a political party.
(6) An order of injunction restraining the defendants by themselves, agents or servants from interfering or further interference in any manner whatsoever with the leadership of the 2nd plaintiff by the 1st plaintiff.
(7) An order of injunction restraining the defendants by themselves, agents or servants from continuing to purport, to recognise or continuing to recognise or deal with any other leadership of the 2nd plaintiff except that of the 1st plaintiff as guaranteed by the 2nd plaintiffs Constitution duly registered with the 1st defendant as required by the Constitution of the Federal Republic of Nigeria, 1999.”
At the hearing of the suit before the Federal High Court the appellants joined by order of court as 3rd and 4th defendants filed a motion on notice on the 26th of July, 2006 praying the court to dismiss this suit as an abuse of court process or alternatively an order striking out the suit for lack of jurisdiction.
The grounds for the application as listed on the application are as follows:
(a) In suit No. FCT/HC/CV/278/05 All Progressive Grand Alliance (APGA) & 3 Ors. v. Chief Victor Umeh & 3 Ors., the same plaintiffs herein brought an action against the same defendant in the suit before the High Court of the FCT, Abuja.
(b) The subject matter of the suit No.FCT/HC/CV/278/05 referred to above pending before the High Court of the FCT Abuja is on all fours with the subject-matter of this present suit.
(c) Suit No. FCT/HC/CV/278/05 referred to above is part-heard, the plaintiffs having closed their cases the suit is adjourned for the conclusion of defence.
(d) Consequently the present suit constitutes gross abuse of process and the Honourable Court is without jurisdiction to entertain same.
In his considered ruling delivered on the 20th of October, 2006, the learned trial Judge dismissed the application.
Being aggrieved by the decision of court the appellants filed this interlocutory appeal. Parties exchanged briefs. In the appellant’s brief filed on 29/11/06, the 1st and 2nd respondents brief filed on 7/12/06 and the 3rd and 4th respondents brief filed on 7/12/06. Parties unanimously identified as the core issue for determination distilled from the grounds of appeal.
“Whether or not the learned trial Judge was right in dismissing the appellants application on the ground that the suit FHC/ABJ/CS/478/05 before him did not constitute an abuse of court process in view of an earlier suit FCT/HC/CV/278/05 on the same subject matter.”
The appellants through their learned senior counsel Mr. Ikwueto made submission that the 3rd and 4th respondents filed this suit while the suit FCT/HC/CV/278/05 before the Federal Capital Territory High Court continued and has nearly reached conclusion. The respondents cannot institute the present action on the same subject-matter as the earlier part-heard suit. The issues involved in the two suits are similar and it is over the leadership tussle in their party All Progressive Grand Alliance (APGA). If the 3rd respondent obtained victory in the present suit the leadership tussles in the 2nd respondent, APGA before the Federal Capital Territory High court would have been determined. The learned senior counsel came to the conclusion that such an action as the present suit is an abuse of the process of court. He supported this submission with numerous authorities which he picked from the list of authorities filed by him, particularly
Ashum Agwasim v. David Ojichie (2004) 10 NWLR (Pt. 882) pg. 613 at 624
Honourable Minister for Works and Housing v. Tomas Nigeria Limited & 26 Ors. (2002) 2 NWLR (Pt. 752) pg. 740 at 780
Dumez Nigeria Plc v. UBA Plc (2006) 14 NWLR (Pt. 1000) pg. 515 at 526 to 527
A.-G., Ondo State v. A.-G., Ekiti State (2001) 17 NWLR (Pt.743) pg. 706 at 771
Ezenwaji v. University of Nigeria (2006) 3 NWLR (Pt. 967) pg.325 at 343.
The learned counsel made reference to an earlier decision of the Federal High Court in suit No. FHC/ABJ/CS/346/2005 creating an issue estoppel over the appropriate forum for determination of the subject-matter of this suit. This court is urged to dismiss the suit being an abuse of the process of court. Learned senior counsel for the 1st and 2nd respondents Chief J. K. Gadzama, SAN associated himself with the 4th respondent by the 1st and 2nd respondents. The subject-matter in the two suits are different. The subject-matter in the suit FCT/HC/CV/278/05 – is
(1) Whether the fourteen defendants can continue to parade themselves as officers/members of the party while claiming to have suspended the plaintiffs/respondents.
(2) Whereas in the suit No FHC/ABJ/CS/478/05 the subject-matter of this suit is whether the 1st and 2nd respondents can in view of the provisions of Part III of the Electoral Act 2002, section 222 of the 1999 Constitution and Article 18(1) of the constitution of APGA claim to have the competence to interfere in the internal affairs of a registered political party to the extent of choosing its leader as conveyed in the letter dated 28/6/05.
The respondent claimed that the case of
Attahiru v. Bagudu (1998) 3 NWLR (Pt. 543) pg 656 is on all fours with the instant case. He cited cases in supported of his submission like
Saraki v. Kotoye (1992) 9 NWLR (Pt.264) pg 156
Ogoejeofor v. Ogoejeofor (2006) 3 NWLR (Pt.966) pg.205
Agwasim v Ojichie (2004) 10 NWLR (Pt. 882) pg 613.
The learned counsel’s contention was that the order of striking out the suit NO: FHC/ABJ/CS/346/2005 did not extinguish the right of the plaintiffs to relitigate the issue in the matter as there was no determination on the merits and as such no estoppel was created by that ruling contrary to the contention of the appellants.
This court is urged to dismiss the appeal while this court should invoke section 16 of the Court of Appeal Act 1990 so as to curb excesses of parties and disobedience of court orders.
I have meticulously considered the submission of learned senior counsel appearing for the parties. The issue calling for the determination of this court is straight forward and within narrow limit.
The poser is for this court to decide whether the lower court was right in holding that the suit FHC/ABJ/CS/478/05 was not an abuse of court process while another suit instituted by the 3rd and 4th respondent is pending before the Federal Capital Territory High Court. The court cannot make any appreciable progress along this line without interpreting what is abuse of the process of court in the light of what contemporary cases express.
In the case of Attahiru v. Bagudu (1998) 3 NWLR (Pt.543) pg. 656 it was stated that the term abuse of court process has the same meaning as abuse of judicial process. The employment of judicial process is regarded as an abuse when a party uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice.
It is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. The term abuse of process has an element of malice in it.
Amaefule v. The State (1988) 2 NWLR (Pt.75) pg. 156
Saraki v. Kotoye (1992) 9 NWLR (Pt.264) pg.156
Okorodudu v. Okoromadu (1977) 3 SC pg 21
Oyegbola v. Esso Best African Inc (1966) 2 SCNLR 35; (1966)1 All NLR pg 170.
The court through decided cases went ahead to hold that the concept of abuse of judicial process is imprecise, as it involve circumstances and situations of infinite varieties and conditions such as –
(a) Multiplicity of actions on the same subject-matter against the same opponent on the same issues, even where there exists a right to bring the action.
(b) The abuse lies in the multiplicity and manner of the exercise of the right rather than the exercise of the right per se,
(c) Instituting different actions between the same parties simultaneously in different courts even though on different grounds where two similar processes are used in respect of the exercise of the same right for example a cross-appeal and a respondents notice.
(d) An application for an adjournment by a party to an action to bring an application to court for leave to raise issues of fact already decided by court below is an abuse of the process of court.
The list is however inexhaustive each incident of abuse can be identified in the circumstance of each particular case –
Doma v. Adamu (1999) 4 NWLR (Pt.598) pg.311
Benaplastic v. Vasilyev (1999) 10 NWLR (Pt.624) pg.620
A.-G., Ondo State v. A.-G., Ekiti State (2001) 17 NWLR (Pt.743) pg.706
Ogoejeofor v. Ogoejeofor (2006) 3 NWLR (Pt.966) pg.205
Ezenwaji v. University of Nigeria, Nsukka (2006) 3 NWLR (Pt.967) pg.325.
It is the duty of the court to guide against any improper use of its machinery and curb any excesses which may result in an abuse of judicial process. I have looked through the facts on printed record and the circumstance of initiating the suits before the Federal Capital Territory High Court and the Federal High Court Abuja.
It is apparent that the end result of the two suits are meant to have an impact on the leadership of the 4th respondent the party – APGA but the 3rd respondent has his grievance towards those he considered to be dissident factors in the party which suit is before the Federal Capital Territory High Court as FCT/HC/CV/278/05. The suit FHC/ABJ/CS/478/05 before the Federal High Court is against the Chairman INEC and INEC, the 1st and 2nd respondents challenging their intermeddling with the affairs of the party by giving recognition to the appointment of Chief Victor C. Umeh as the Ag. National Chairman of APGA in the letter dated 28/6/06 contrary to the constitution of the Party, 1999 Constitution of the Federal Republic of Nigeria and the Electoral Law. I cannot identify any multiplicity of action here or abuse of the judicial process. Parties are permitted to air their grievance at the law courts as when there is a right there must be a remedy.
Falobi v. Falobi (1976) 9-10 SC 1
Bello v. A.-G., Oyo State (1986) 5 NWLR (Pt.45) pg 828.
The appellants counsel made reference to the suit which was withdrawn against the 1st and 2nd respondents and asked that same should constitute estoppel against bringing the suit at the Federal High Court.
I agree with the submission of the learned senior counsel for the 3rd and 4th Respondents that the withdrawal was not on merit, as the suit was only struck out and not dismissed.
The appeal therefore lacks merit, as this court finds no cause or reason to interfere with the decision of the lower court.
Chief Uche senior counsel urged this court to invoke the provisions of section 16 of the Court of Appeal Act and Order 3 Rule 22 (1) and (2) of the Court of Appeal rules 2002, and also made reference to the Supreme Court decision in the case Adeleke v. Oyo State House of Assembly (2006) 16 NWLR (Pt. 1006) at pg 608 at pg 672, to give an order of reversion to status quo ante before the commencement of hostilities pending the determination of the substantive suit.
This court cannot overlook the contents of the letter issued by the 1st and 2nd respondents dated 28/6/05 which has changed the scenario in the party and will render any order of status quo made nugatory.
It has to be remembered that a court like nature must not make an order in vain. Section 16 of the Court of Appeal Act empowers the Court of Appeal to exercise powers of the Court of first instance in the determination of the case before it on appeal. It empowers the court going by printed record to make an interim order or grant any injunction which the court of first instance is authorised to make or grant and shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as of first instance. Section 16 is designed to assist the process of litigation and not to usurp the jurisdiction of Court of first instance in interlocutory matters.
Oshoboja v. Amada (1992) 6 NWLR (Pt.250) Pg 690
U.B.N. v. Fajebe Foods (1994) 5 NWLR (Pt.344) Pg.325
Soyanwo v. Akinyemi (2001) 8 NWLR (Pt.714) pg 95.
In the case of Adeleke v. Oyo State House of Assembly (2006) 16 NWLR (Pt.1006) pg.608 at 672 – the Court of first instance declined jurisdiction. In circumstance of the need for expeditious hearing of the matter the Court of Appeal has no choice but to invoke section 16 of the Court of Appeal Act. The letter dated 28/6/05 has made that section irrelevant in the instance of this case.
In the final analysis this appeal is dismissed for lacking in merit. The ruling of the lower court is affirmed.
No order as to costs.
Other Citations: (2006)LCN/2142(CA)
