M.O. Kolawole V. Attorney- General of Oyo State & Ors. (2005)

LawGlobal-Hub Lead Judgment Report

TABAI, J.C.A.

This ruling is sequel to an application filed on the 9/6/05, for an order dismissing the notice of appeal together with the motion on notice filed by the plaintiff/appellant on the grounds that:

“(i) This Honourable court lacks jurisdiction to entertain this appeal for same concerns Election Petition at the Local Government level.

(ii) The appeal and the motion on notice are grossly incompetent.

(iii) This appeal and the motion on notice constitute abuse of the process of court.”

The motion was supported by a 39 paragraph affidavit. On behalf of the appellant/respondent was also filed a 27 paragraph counter-affidavit. The motion sought to be dismissed along with the notice of appeal is that filed on the 1/3/05.

Arguing the motion, learned Counsel for the 4th respondent/applicant submitted that there was neither competent appeal nor a foundation upon which the said application could stand. According to him, the appellant is a participant mala fide in the series of appeals and applications on the same Ibarapa East Local Government election. According to him, this is the 4th application this Court has entertained on this same matter- two of which were brought by this same appellant/applicant of the 1/3/05. He said the motion of 1/3/05 was predicated upon a purported originating summons which was not before this court. Also, not before this court is the record of appeal upon which the cause of action before the lower court can be determined. He argued that the motion of 1/3/05 is based on a non-existing appeal and that no leave of this court has been obtained to file the appeal outside the period allowed for the appeal as stipulated in the constitution and rules of this court. Counsel referred to the depositions in the appellant’s motion and submitted that the issues therein are the same as those in exhibits A1, E2, D, F and I.

It was counsel’s further submission that the appellant/applicant being the appellant before the Election Appeal Tribunal is estopped from challenging the validity of the same Election Appeal Tribunal. For this submission, counsel relied on Gov. of Oyo State v. Folayan (1995) 8 NWLR (Pt.413) 292 at 322; Umenwa v. Umenwa (1987) 4 NWLR (Pt. 65) 407 at 417; N.N.S.L. Ltd. v. Emenike (1987) 4 NWLR (Pt. 63) 77 at 87.

On the submission, this court lacks the jurisdiction to entertain the appeal and the application, counsel cited KSIEC v. PDP (2005) 6 NWLR (Pt. 920) 25 at 49-50, 52-53; Awuse v. Odili (2003) 18 NWLR (Pt. 851) 116 at 124; Oduola v. Coker (1981) 5 SC 197 at I 198-199; Orubu v. N.E.C. (1988) 5 NWLR (Pt. 94) 323; Ndu v. Onuaguluchi (No.1) (1999) 11 NWLR (Pt. 625) 152 at 155. The constitutional limitations imposed on the exercise of judicial powers, he argued, must not be breached. In support of this submission, he relied on Uwaifo v. A-G. Bendel State (1992) 3 NWLR (Pt.229) 350, (1982) 7 SC 124 at 175-176; Odofin v. Agu (1992) NSCC 520 at 527; NNB. Plc. v. Denclag Ltd. (2005) 4 NWLR (Pt. 916) 549.

Learned Senior Counsel further submitted the rulings and judgments against the appellant/applicant were in rem which binds the whole world. For this submission, he relied on ACB Plc. v. Obmiami Brick & Stone (1993) 5 NWLR (Pt. 294) 399; NV Scheep v. MV ‘s’ Araz (2000) 15 NWLR (Pt.691) 622; Oke v.Atoloye (1986) 1 NWLR (Pt15) 241; Ege Shipping and Trading Indurstry v. Tigris International Corporation (1999) 14 NWLR (Pt.637) 70; Fointrades Ltd. v. Universal Association Co. Ltd. (2002) 8 NWLR (Pt.770) 699; Sosan v. Ademuyiwa (1986) 3 NWLR (Pt. 27) 241.

In opposing the application, learned Senior Counsel for the appellant/applicant/respondent submitted firstly that an applicant is bound by the prayers in his application and relied on Commissioner of Works, Benue State v. Devcon (1988) 3 NWLR (Pt.83) 407 at 420. The respondent/applicant has by the application conceded that there is a notice of appeal, he argued. He submitted that the application is incompetent for failing to display the very notice of appeal sought to be dismissed. He submitted that a preliminary objection to jurisdiction does not admit of conflict in affidavit evidence and that in view of the conflicting affidavit evidence the preliminary objection ceases to be one. Learned Senior Counsel argued that the motion of 1/3/05 premised on the appeal filed on the 11/2/05 and which calls for the disciplinary jurisdiction of this court over the proceedings of the lower court is competent. He cited Mohammed v. Olawunmi (1993) 4 NWLR (Pt. 287) 254; Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472 at 494 & 495; The Praying Band of The Sacred Society of Cherubim and Seraphim Church & Ors. v. Natalie Ellen Udokwu (1991) 13 NWLR (Pt. 182) 716 at 733. Learned senior counsel submitted that the application of the 1/3/05 is in the nature of contempt proceedings which therefore takes precedent even over the issue of jurisdiction. He conceded that the notice of appeal was filed irregularly because it was filed out of time. He contended however that that does not render it incompetent since the court allows a party to regularize its position and cited Tsokwa Oil Marketing Co. (Nig.) Ltd. v. Bank of the North Ltd. (2002) 11 NWLR (Pt.777) 163. Counsel submitted that an appeal against the decision of the high Court cannot constitute an abuse of the court process. An appeal or application withdrawn or struck out is one not decided on the merit and does not preclude the appellant or applicant from filing another, he argued. In support of this submission, he relied on N. V. Scheep v. M. V. ‘s’ Araz (2000) 15 NWLR (Pt. 691) 622. It was his submission that Awuse v. Odili; Uwaifo v. A-G. Bendel State (Supra) do not apply as they were decided on constitutional limitations. Submitted that there was nothing which limits the High Court and this Court from entertaining appeals from the decision of the Election Appeal Tribunal. For the unlimited jurisdiction of the High Court including the power to control tribunals, reliance was placed on Okeahialam v. Nwamara (2003) 12 NWLR (Pt. 835) 597 at 612.

With respect to the issue of estoppel, it was the submission of learned senior counsel that the issues raised at the Election Appeal Tribunal are different from those in the High Court and therefore estoppel does not apply. He relied on Udo v. Obot (1989) 1 NWLR (Pt.95) 59 at 77 and 83; Obasanjo v. Yusuf (2004) 9 NWLR (Pt. 877) 144 at 183-184. He urged in conclusion that the application be dismissed.

It is pertinent, at this stage, to point out that on the 15/6/04 when this motion was argued, Chief Akintola, SAN learned Senior Counsel for the applicant, remarked that the appeal had not been entered in this court. In response learned Senior Counsel for the appellant/respondent Mr. Seeni Okunloye said that the appeal has been entered and the records of appeal has just been transmitted to the court and that it was available in this court’s registry. The said record was however not before us. In the course of his address later in the day, Mr. Okunloye, SAN sought to use the record of appeal which, he said, was then available. Despite the objection of Chief Akintola, SAN, we granted him the leave to use it. I shall, in this ruling, make references to the said record, as and whenever necessary.

From the affidavit evidence contained in this application, the application of the appellant filed on the 1/3/2005 and the record of appeal, the following facts are established:-

“1. On the 27/3/04, an election for the chairmanship of Ibarapa East Local Government of Oyo State was conducted by the Oyo State Independent Electoral Commission (OYSIEC) and the appellant who is the 1st respondent herein was declared elected as the Chairman of Ibarapa East Local Government.

2. Aggrieved by the aforesaid election and return of the appellant/respondent, the applicant Mr. J. A. Akintaro filed a petition at the Local Government Election Petition Tribunal, praying that he be declared the duly elected Chairman of Ibarapa East Local Government. The appellant/respondent was the 1st respondent in the petition.
3. The petition was keenly contested and tried and on the 16/8/04, the tribunal delivered its judgment, whereby it nullified the declaration and return of the appellant and declared the applicant as the duly elected Chairman of Ibarapa East Local Government of Oyo State.
4. Aggrieved by this decision of the Local Government Election Petition Tribunal the appellant filed an appeal to the Oyo State Local Government Election Appeal Tribunal.
5. By its judgment on the 21/10/04, the Local Government Election Appeal Tribunal dismissed the appeal and affirmed the decision of the lower tribunal declaring the applicant herein as the duly elected Chailman of Ibarapa East Local Government of Oyo State. By the provisions of the Oyo State Independent Electoral Commission Law 2000, the Local Government Election Appeal Tribunal is the final court of Appeal in matters pertaining to Local Government Elections in ayo State.
6. Still dissatisfied, the appellant/respondent initiated another action at the High Court of Oyo State by way of an originating summons in suit No. 1/779/2004. The applicant herein, Mr. I. A. Akintaro was the 5th respondent, the reliefs claimed were as follows:-

a. A declaration that by virtue of section 12 of Oyo State Independent Electoral Commission Law Cap. 154,2000, a person who is not nominated to contest an election cannot contest or be declared as a winner of such election.

b. A declaration that the 5th defendant who was not nominated to contest an election in accordance with section 12 of Oyo State Independent Electoral Commission Law Cap. 154 cannot be declared the winner of the election.

c. An order of injunction restraining the 1st, 2nd, 3rd and 4th defendants from recognizing, swearing in and or issuing certificate of return to the 5th defendant as the elected Chairman of Ibarapa East Local Government Eruwa pending the determination of this case.

In paragraphs 4, 5, 6, 7 and 8 of the affidavit in support of the originating summons, the plaintiff/appellant deposed:

“4. That the Law of the 4th defendant regulating the Local Government Election stated that before anybody can contest an election he must be first nominated.”

“5. That before the conduct of the election to the post of chairman of Ibarapa East Local Government the 5th defendant was not nominated.”

“6. That the 5th defendant did not contest the election.”

“7. That after my declaration as the winner of the election, the 5th defendant filed a petition against my election.”

“8. That the 5th defendant having not contested the election with me ought not to challenge my election.”

“7. The 5th defendant who is the applicant herein filed a notice of preliminary objection. Some of the grounds of the objection were incompetence of the suit, the court’s lack of jurisdiction and the suit being an abuse of the court process.”

Arguments were taken. And in a considered ruling on the 11/11/2004, the court per Ariwola J, reasoned that the questions being raised in the originating summons were the very questions raised and finally determined between the same parties by the Local Government Elections Appeal Tribunal, that the plaintiff/appellant was estopped from re-opening or relitigating the same issues; that the court lacked the jurisdiction to entertain the suit and which suit constituted an abuse of the court process. The originating summons was dismissed.

8. On that same 11/11/04, the appellant/respondent filed yet another motion for “an order of injunction restraining the 1st, 2nd, 3rd and 4th defendants from recognizing, swearing in and or issuing certificate of return to the 5th defendant as the elected chairman of Ibarapa East Local Government pending the appeal.”

By a ruling of the court per Ariwola J. on the 22/11/04 the motion was struck out.

9. The appellant/respondent filed a notice of appeal to this court on the 11/11/04 and pursuant thereto filed two motions. One was filed on the 22/11/04, and the other was filed on the 2/12/04. On the 8/2/05, the motions were withdrawn and each was struck out.
10. There was yet another motion filed on the 11/2/05. On the 15/2/05, the said motion and the notice of appeal filed on the 11/11/05, were withdrawn and same were struck out with some costs.
11. Meanwhile, shortly after the filing of the notice of appeal mentioned in paragraph 9 above the selfsame plaintiff/ appellant Mr. M. O. Kolawole initiated yet another action also by originating summons. This was on the 16/11/04. The parties were the same except that the Governor of Oyo State who was the 1st defendant in the earlier action was not a party, while the Local Government Election Appeal Tribunal Oyo State was made a party as the 3rd defendant, he claimed the following reliefs:-

(i) A declaration that section 34(3) and (4) and section 39(1) of the State Independent Electoral Law of Oyo State 2000, are contrary to the provisions of Cap VII of the 1999 Constitution and section 36(1) of the said Constitution and are therefore null and void and of no effect whatsoever.

(ii) A declaration that instrument made pursuant to section 39(1) of the State Independent Electoral Commission Law of Oyo State, 2000, is contrary to the provisions of Cap VII of the 1999 Constitution and as well as section 36(1) of the said Constitution and therefore null and void and of no effect whatsoever.

(iii) A declaration that the proceedings and decision contained in appeal No. LGET/OYS/50A/04 Akintaro v. Kolawole & Ors. were conducted in breach of section 36(1) of the 1999 Constitution in excess of the 3rd defendant’s appeal tribunal and therefore null and void and of no effect whatsoever.

(iv) An order setting aside the proceedings and decision of the Oyo State Election Appeal Tribunal in Appeal No. LGET/OYS/50A/04 for being null and void and of no effect whatsoever and for hearing being reached in excess of the Tribunal’s jurisdiction.

(v) An order of perpetual injunction restraining the respondents by themselves, their agents, privies, officers, allies, sponsors, successors’ in-title or any person howsoever described from swearing in the 4th respondent as the Chairman of Ibarapa East Local Government or from disturbing the plaintiff in the performance of his functions as the Chairman of Ibarapa East Local Government.

12. Filed on the same day with the originating summons was a motion for: “An order of interlocutory injunction restraining the respondents by themselves, their agents, privies, officers, allies, sponsors, successors-in-title or any person howsoever described from swearing in the 4th respondent as the Chairman of Ibarapa East Local Government or from disturbing the plaintiff in the performance of his functions as the Chairman of the Ibarapa East Local Government pending the determination of this suit”.
13. The applicant herein and who was the 4th respondent therein filed a notice of preliminary objection on the 5/1/05, challenging in substance the jurisdiction of the court to entertain the action commenced by way of originating summons. The said preliminary objection was fixed for hearing on the 24/1/05.
14. On the 24/1/05, the plaintiff/appellant …yet another motion for the following injunctive orders:-

a. An order restraining the 1st respondent by himself his principal, agents, privies, officers, successors-in-title and all persons acting through him from continuing their acts of contempt of the process of this honourable court in preventing the plaintiff from continuing to carry out his functions as Chairman of Ibarapa East Local Government while the plaintiff’s application for injunctive reliefs is pending.

b. An order directing the 1st defendant by himself, his principal, agents, servants, officers, privies, successors-in-title or any persons deriving authority from him to reverse the parties to their original position by refraining from preventing the plaintiff from continuing to act as the Chairman of Ibarapa East Local Government pending the hearing and determination of the plaintiff’s motion on notice for injunctive orders.

c. An order of this honourable court restraining the respondents whether by themselves or acting in concert or individually or through their agents, heirs, privies, servants, successors-in-title, person or group of persons or anyone howsoever, described from disturbing, harassing, tormenting, hindering and or preventing the plaintiff applicant from performing or discharging his duties as the Chairman of lbarapa East Local Government pending the determination of the plaintiff’s motion on notice for an order of injunction already filed in this suit.”

15. On that same 24/1/05, when argument on the notice of preliminary objection challenging the jurisdiction of the court to entertain the originating summons was about to be argued, the plaintiff’s/appellant’s counsel informed the court of the pendency of an application for contempt and insisted that the said application be taken before the preliminary objection. Learned Counsel for the 4th defendant/applicant contended on the other hand, that the preliminary objection on jurisdiction be taken first. Both counsel addressed the court extensively on which of the two applications should enjoy priority of being heard first. Ruling was reserved till the 11/2/05.
16. On the 11/2/05, the learned trial Judge Oladeinde J. delivered his ruling wherein he decided that arguments on the challenge of the court’s jurisdiction be taken first. This was at 12 p.m. Mr. Okunloye, SAN for the plaintiff, sought a stand down of arguments on the preliminary objection to the court’s jurisdiction till 2 p.m. to enable him get the necessary authorities for the arguments he intended to canvass.

The court granted the application and the matter was stood down till 2 p.m.

17. When the court reconvened at 2 p.m. Mr. Okunloye, SAN informed the court that they had filed a notice of appeal against its decision to hear arguments on the preliminary objection to jurisdiction first and they had also filed a motion for stay of further proceedings pending the determination of their appeal to this Court. The learned Senior Counsel then sought the leave of the court to … move his motion for stay of further proceedings. Miss Aofolaju, learned Counsel for the 4th defendant/applicant opposed the application to hear the motion for stay of proceedings first and insisted that argument on the challenge of the court’s jurisdiction be taken first. Again, both counsel proffered arguments in support of their position.
18. The learned trial Judge then ruled that he would first take arguments on the challenge of the court’s Jurisdiction before any other steps in the proceedings.
19. The learned Senior Counsel then applied for adjournment to enable them time to appeal against the court’s decision to take the preliminary challenge of jurisdiction before the motion for stay of further proceedings. This application for adjournment was again opposed by learned Counsel for the 4th defendant/applicant. Both counsel again proffered argument in support of their stance. The application for adjournment was refused and the learned trial Judge ordered that the challenge of jurisdiction be argued.

The notice of appeal filed on the same 11/2/05 is at pages 57-58 of the record of appeal, while the motion for stay of further proceedings filed on the same 11/2/05 is at page 23 of the record.

20. At this stage, learned Senior Counsel for the plaintiff told the court that he would not continue with the hearing of the case.
21. Miss Aofolaju learned Counsel for the 4th defendant/applicant proffered detailed arguments in support of the preliminary objection to the jurisdiction of the court to entertain the suit.
22. In his ruling, the learned trial Judge upheld the objection and held that the court lacked the jurisdiction to entertain the originating summons and same was struck out.
23. The notice of appeal against the aforesaid ruling of the 24/2/05 was filed only on the 2nd of June 2005.”

The above 23 point statement of facts represents the substance of what can be gleaned from this application filed on the 9/6/05, the application of the appellant filed on the 1/3/05 and the record of appeal to which learned Senior Counsel for the appellant made references in his address.

Let me now consider the merit or otherwise of this application. Since there is sufficient evidence that the record of proceedings at the court below has been received in the registry of this court, the appeal is, by virtue of the provisions of Order 1 Rule 21(1) of the Court of Appeal Rules, 2002, deemed to be entered. I shall therefore discountenance all the arguments premised on non-entry of the appeal. Mr. Okunloye, SAN on the other hand also attacked the competence of this application for not exhibiting the notice of appeal sought to be dismissed. Since the said notice of appeal is at pages 57-58 of the record of proceedings on which he relied, it shall be treated as one of the records before us and argument in that respect will similarly be discountenanced.

It is clear from the above summary that the action commenced by way of originating summons filed on the 16/11/04 has precipitated the series of applications. The relief claimed included two perpetual injunctions the focus of which was for him (plaintiff) to continue to function as the Chairman of Ibarapa East Local Government and to prevent the 4th defendant/applicant from being sworn in as Chairman of Ibarapa East Local Government. There was also that motion for interlocutory injunction filed along with the originating summons which relief was also to prevent the 4th defendant/applicant from functioning as the Chairman of Ibarapa East Local Government. The next process filed was the preliminary objection to the court’s jurisdiction to entertain the action filed on the 5/1/05. It was fixed for hearing on the 24/1/05, the day the events culminating in this application actually started.

It was the day the controversial two relief motion was filed. The three reliefs sought were two prohibitory and one mandatory orders of injunction. There were thus, before the court two motions namely preliminary objection filed on the 5/1/05 and which was fixed for that day for hearing and the three relief motion for injunctive orders filed that day. Learned Counsel for the parties proffered fairly detailed addresses on the issue. The substance of the argument of Chief Akintola, SAN was that because his application challenged the jurisdiction of the court to entertain the substantive suit, it ought to be taken first. Mr. I.L. Alabi for the appellant, submitted, on the other hand, that their application filed that morning was one for contempt of court and should enjoy the priority of being heard first. Ruling on this was reserved till the 11/2/05.

Before proceeding to the events of the 11/2/05, it is perhaps pertinent to comment briefly on the proceedings of the 24/1/05. First, it is my humble view that the appellant’s description of the motion of that day as an application for contempt proceedings is, with respect, misleading. The motion was clearly one for three interim injunctive orders pending the determination of the motion for interlocutory injunction then pending.

Implicit in the application of the 24/1/05, is the fact that despite the decision of the Local Government Election Petition Tribunal confirmed by the Local Govt. Election Appeal Tribunal, the appellant continued to function as the Chairman of Ibarapa East Local Government. And the application is brought to ensure his continuous function as such Chairman. The State Independent Election Commission Law of Oyo State, 2000, under which the two tribunals were set up remains a valid law. The law or any of the provisions thereat shall continue to remain valid unless and until its invalidity is pronounced by a court of competent jurisdiction. And the judgments of the Election Tribunal and Election Appeal Tribunal remain valid and subsisting and the whole world including the appellant is bound to obey the decisions unless and until same are declared a nullity by a court of competent jurisdiction.

In Oba Amos Babatunde & Ors. v. Mr. Simon Olatunji & Anor (2000) 2 NWLR (Pt. 646) 557 at 572, the Supreme Court per Achike, JSC forcefully restated the principle in the following terms:

“Matters pertaining to judicial orders or judgments, for that matter, are not generally treated with arrogance or levity. Speaking for myself, it is rather officious and treading on a perilous path for one to arrogate to oneself the right to choose and pick between court orders in terms of whether they are valid or null and void. In fact, since there is a strong presumption in favour of the validity of a court’s order, it behoves everyone to keep faith with the order of the court. It makes no difference that ex facie it appears that the court that made the order is without jurisdiction because at the end of the day, an order of the court subsists and must be obeyed until set aside by a court of competent jurisdiction. To, therefore, disobey an order of the court on the fancied belief that the said order is null for any reason whatsoever – even if it subsequently turns out that the order in fact is proved to be null-is a risky and unadvisable decision because, until the said order is finally determined to be null and void by the court, the order subsists in the string attaching to it unmitigated. Therefore, sheer commonsense as well as prudence demands that every order of the court should be accorded due respect and no attempt made to flout the order on the flimsy reason that it is null and void.”

On this principle, see also Fawehinmi v. A-G. Lagos State (No.1) (1989) 3 NWLR (Pt112) 707 at 724; Akibu v. Oduntan (1991) 2 NWLR (Pt. 171) 1 at 13.

It is therefore, inconceivable for the appellant to suggest that the 1st-3rd respondents were in contempt for trying to give effect to the valid and subsisting decision of the tribunals. Rather, it is my view that it is the appellant that persists in contempt in his bid to continue to function as the Chairman of Ibarapa East Local Government.

Also, the appellant’s insistence on the court hearing his application before the preliminary objection was made in total disregard of the provisions of Order 8 Rule 17 of the Oyo State High Court Civil Procedure Rules, 2000, which provides that unless there is leave of court, there shall be at least two clear days between the service of a motion on notice and the day named for hearing of the motion.

Pursuant there to, the motion filed on that same 24/1/05 was not ripe for hearing. Yet appellant’s counsel insisted that it be heard before the preliminary objection filed nearly three weeks earlier. In my view, the conduct of the appellant’s counsel in so insisting tended to undermine the court’s control of the proceedings before it.

I now come to the crucial events of the 11/2/05, which details I have stated above and which substance I repeat for emphasis. In a considered ruling, the learned trial Judge Oladeinde J. relying on the decision of this court in Enweremadu v. Ohajuruka (2001) 43 WRN 53 at 59, decided to hear the preliminary objection first. Mr. Okunloye, SAN requested a stand down of the case for two hours to enable him prepare arguments for the preliminary objection and the learned trial Judge granted the request. On resumption after the two hours, learned Senior Counsel for the appellant informed the court that they had filed (1) a notice of appeal against the ruling and (2) a motion for stay of further proceedings pending the determination of the appeal. (The said notice of appeal is one of the processes sought to be dismissed in this application.) He then urged that the motion for stay of further proceedings be heard first. Miss Aofolaju for the 4th defendant/applicant opposed the application and insisted that the preliminary objection be heard first. The court ruled in favour of hearing the preliminary objection first. The learned Senior Counsel then applied for adjournment to enable them file yet another appeal against the court’s decision to hear the preliminary objection first. The adjournment was refused by the learned trial Judge who then asked learned Counsel for the applicant to proffer arguments on the preliminary objection.

At this stage, Mr. Okunloye, SAN told the court that he would not continue with the hearing of the case in the circumstances and left the court. The preliminary objection to the jurisdiction of the court was argued by the applicant’s counsel. In his ruling on the 24/2/05, the learned trial Judge struck out the originating summons for the court’s lack of jurisdiction.

One of the grounds of this application is that, the notice of appeal constitutes an abuse of the court’s process. The complaint of the applicant is that because of the pendency of the originating summons and the numerous applications arising therefrom, he has not been able to function as the Chairman of Ibarapa East Local Government. And because of the pendency of the originating summons, the appellant continued to insist that he was still the Chairman of Ibarapa East Local Government despite the subsisting decision of the Local Govt. Election Petition Tribunal. The preliminary objection if sustained would terminate the life of the originating summons and obviate the persisting stalemate. Because of the process filed on the 24/1/05 the preliminary objection fixed for that day could not be taken. The proceedings of the 11/2/05 showed clearly that appellant was bent on using the court’s process to obstruct a hearing of the preliminary objection. The appellant’s counsel deceived the court into believing that he wanted the two hours stand down to enable him prepare for arguments in the preliminary objection. It turned out to be that he wanted the stand down to enable them file a notice of appeal and a motion for stay of further proceedings.

I am satisfied that the two processes filed on that day were also aimed at obstructing the hearing of the preliminary objection and occasion further waste of precious litigation time.

In his book Injunctions And Enforcement of Orders, Afe Babalola SAN, relying on some local and foreign authorities listed three instances of abuses of court process as follows:-

“(1) Any process or act by any person which deceived the court by making a false assertion or by oppressing the truth.

(2) All other forms of misuse of court process which at least, lead to the prejudice of the other parties.

(3) Filing a process in court in anticipation of an unfavourable ruling or order that the court would make in a case so that such an unfavourable ruling or order would be taken care of by the pre-emptor process.”

According to the learned author, each of these types of abuses can even constitute contempt of court. (See pages 77-81 of the book.)

I am satisfied beyond doubt that the two processes filed on the 11/2/05 coupled with the conduct of learned Counsel for the appellants fall within the description of the above three instances of abuses of court process. In Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 188, the Supreme Court per Karibi- Whyte, JSC, spoke of abuse of judicial process as follows:-

“It is recognized that the abuse of the process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a 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.”

The appellant has the constitutional right of appeal against any decision by which he is aggrieved. But such appeal process must be used bona fide. Where, as in this case, the appeal process is employed to the irritation and annoyance of the opponent and impedes or obstructs the efficient and effective administration of justice, the court should act promptly to stop it.

In the light of the foregoing considerations, I hold that the application in respect of the notice of appeal filed on the 11/2/05 succeeds. The said notice of appeal is therefore liable to be dismissed.

Next is the motion filed by the appellant on the 1/3/05. It prays for:-

“An order of this honourable court setting aside the proceedings and ruling delivered by Oladeinde J. on the 24th February, 2005, in suit No. M/558/04 striking out the originating summons filed by the plaintiff/appellant/applicant herein which proceedings and ruling were held in total disregard for the appellant’s application for stay of further proceedings in the said suit pending before this honourable court.”

The notice of appeal against the aforesaid ruling was dated the 1st of June, 2005 and filed on the 2nd of June, 2005. As at the 1/3/05, when the motion was filed therefore, there had been no appeal before this court. The process therefore originated in this court without reference to an enabling appeal. The original jurisdiction of this court is as circumscribed in the provisions of section 239 of the 1999 Constitution of the Federal Republic of Nigeria. It is limited only to determining questions as to whether:-

“(a) any person has been validly elected to the office of President or Vice-president under this Constitution; or

(b) the term of office of the President or Vice-President has ceased; or

(c) the office of President or Vice-President has become vacant.”

Besides this, the jurisdiction of this court is essentially appellate from the courts specified in section 240 of the Constitution. Save and except as provided for in section 239 of the Constitution, no person can initiate a process in this court unless such a process arises from or is connected to an existing appeal. Having regard to the fact that there was no appeal, enabling the initiation of the application, this court lacks the jurisdiction to entertain it. The consequence is that if this court entertains this application of 1/3/05 over which it has no jurisdiction, it would only be embarking on a null and void adjudication process. I find support for this principle in the following cases:-

Aladegbemi v. Fasanmade (1988) 3 NWLR (Pt.81) 129; Onyemobi v. President Onitsha Customary Court (1995) 3 NWLR (Pt.381) 50 at 61; Ojimba v. Ojimba (1996) 4 NWLR (Pt.440) 32 at 39.

In the final analysis, therefore, I hold that the motion in question dated the 28th of February, 2005, and filed on the 1st of March, 2005, is incompetent and this court lacks the jurisdiction to entertain it. In conclusion, I dismiss the notice of appeal on the ground that it constitutes a gross abuse of the court’s process. The motion of the appellant dated the 28th of February and filed on the 1st of March, 2005 is struck out for incompetence.

I assess the costs of this application at N10,000.00 against the appellant/respondent in favour of the 4th defendant/ applicant.

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Other Citations: (2005)LCN/1809(CA)