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-