Alhaji Muhammadu Maigafu Dingyadi & Anor V Independent National Electoral Commission (2010)
LAWGLOBAL HUB Lead Judgment Report
The salient facts giving rise to the applications pending before this court are that Governorship Election was held in Sokoto State on the 14th day of April, 2007. The 2nd respondent herein Aliyu Magatakarda Wamakko, who was fielded by the PDP was returned as the winner of the said election having scored the highest number of votes cast. The 1st appellant/applicant, Alhaji Muhammadu Maigari Dingyadi, who had contested the same election as the candidate of the Democratic Peoples Party DPP, scored the second highest number of votes. He was not satisfied with the results of the election and he filed a petition before the Governorship and Legislative Houses Election Tribunal, Sokoto, challenging the declaration and return of the 1st respondent as the winner. The petition was dismissed. There was an appeal by the appellants to the Court of Appeal Kaduna. The appeal was allowed. The election of the 14th day of April, 2007, was nullified. The Court of Appeal, Kaduna ordered fresh election between the same candidates and same parties as appeared in the statement of result sheet. Fresh election was accordingly conducted on the 24th of May, 2008. The 2nd respondent still won with overwhelming votes. Dissatisfied with this result, the appellants filed a petition before the Sokoto Governorship Tribunal in petition No. SS/EPT/GOV/1/2008.
At the end of hearing, the Tribunal dismissed the petition on lack of jurisdiction to interpret the judgment of the Court of Appeal Kaduna. The appellants appealed to the Court of Appeal Sokoto in Appeal No. CA/S/EP/GOV/10/09, which is still pending in that court.
Meanwhile the appellants had filed on 25/8/08 a suit before the Federal High Court, Abuja, through originating summons in suit No., FHC/ABJ/CS/260/08 praying for the interpretation of the judgment of the Court of Appeal, Kaduna Division. On the 17th of July, 2008, the Federal High Court, Abuja, dismissed the suit on the, ground that it has no jurisdiction to interpret the judgment of the Court of Appeal, Kaduna. The appellants were further dissatisfied with the said judgment of the Federal High Court, Abuja, and they appealed to the Court of Appeal, Abuja Division, in appeal No.CA/A/278/08. While this appeal was pending, the appellants filed an application in the Court of Appeal Abuja for leave to raise fresh issue not raised at the Federal High Court i.e. the Federal High Court Abuja had jurisdiction to enforce the judgment of the Court of Appeal, Kaduna. The application was opposed and in its ruling of 30th November, 2009, the Court of Appeal Abuja Division, refused to grant the prayer to raise fresh issues. It is against this ruling that the appellants appealed to this court vide their Notice of Appeal dated 14th day of December, 2009. The appeal before this court is thus an interlocutory appeal.
Since the filing of the Notice of Appeal as aforesaid which was also done on the 14th of December, 2009, this court has been inundated with series of processes ranging from motions, affidavits and counter affidavits; Notice of withdrawal of appeal, Notice of opposition to withdrawal of appeal etc. Below are the processes I have noticed in the appeal file made available to me by the Registry:
i. Motion on Notice dated 18/3/2010, filed by the appellants/applicants on the 19/3/2010 for an order of this court bringing forward the next adjourned date in this matter etc
ii. Motion on Notice dated 23/3/2010 filed by the 1st respondent on same date. It is an order directing the parties to file written briefs etc.
iii. Motion on Notice dated 29/3/2010 and filed on same date by the 1st respondent for an order of this court preserving the RES etc.
iv. Notice of Opposition to withdrawal of appeal dated and filed by the 1st respondent on 1/3/2010.
v. Motion on Notice dated and filed on 12/2/2010 by the 2nd respondent for an order granting a departure from the Rules etc;
vi. Motion on Notice dated and filed on 10/3/2010 by 2nd respondent for an order of this court striking out the Notice of withdrawal of appeal filed by the appellants on 12/2/2010 but dated 22/1/2010;
vii. Motion on Notice for an order setting aside the Ex-parte order made by this court in chambers on 10/3/2010. The motion was dated and filed by the 2nd respondent/applicant on 12/3/2010.
viii. Motion on Notice dated and filed by the 2nd respondent/applicant for an order extending the time for the 2nd respondent/applicant to file a cross-appeal.
ix. Motion on Notice dated 7/4/2010 and filed on 8/4/2010 by 3rd respondent for an order setting aside the ex-parte order made by this court in chambers on 10/3/2010 etc.
Several affidavits and counter affidavits were filed by the parties affected.
Thus, except the process in no. (iv) all other processes are motions on Notice. Motion on Notice reflected in No. (ii) above was withdraw and struck out.
The motion indicated in No. (viii) above is left in suspense by the 3rd respondent/applicant pending the determination of other applications. The other motions and processes are for consideration by this court.
I will begin my consideration by stating that this court took oral submissions¢ from the respective learned Senior counsel/counsel for the parties before this court on the 19th, 20th and 21st of April, 2010. I will take motions and the process in numbers [iv], [vi], [vii], [ix].
Process in no [iv], and motion on Notice in No.[vi] above.
In number [iv], it is a Notice of opposition to withdrawal of appeal under Order 8 Rule 6 of the Supreme Court Rules (as amended).
In his oral submissions on the 19/4/2010, learned counsel for the 1st respondent/applicant, Mr. Y. Mahmood, stated that the notice of position filed on 1/3/2010 is supported by a 27 paragraph affidavit. He relied on all the paragraphs. He submitted that after filing the Notice of opposition, it was not proper for the court to dismiss the appeal; in chambers. He cited and relied on Order 8 Rule 6 of this court’s Rules which provides that pending matters must be heard before final determination of an appeal. The appeal was wrongly dismissed. The grounds for the opposition were setout as follows:
a) The Notice of withdrawal was filed in bad faith to defeat the cause of justice.
b) In the circumstance of the appeal, it is against the interest of the 1st respondent and the interest of justice to allow the appeal to be withdrawn.
In his motion on Notice (indicated in [vi] above), the leaned senior counsel for the 2nd respondent/applicant, Chief Olanipekun, SAN, prayed for an Order striking out the Notice of withdrawal of appeal filed by the appellants dated 22/1/2010 and filed 12/2/2010, pursuant to Order 8 Rule 6 of this court’s Rule, 1999. The following grounds were set out by the learned SAN, upon which the motion on Notice rested.
“GROUNDS OF THE APPLICATION
i. Appellants, appealed to this court against an interlocutory decision at the Court of Appeal delivered on 13th November, 2009 vide their Notice of Appeal filed on 14th December, 2009.
ii. While appellants did not make efforts to compile and transmit the record of proceedings to the Supreme Court, respondent/applicant complied the said record and filed a motion before this court on 11th February, 2010 praying amongst other for a departure from the Rules by allowing the record so compiled by him to be used for the purpose of this appeal.
iii. Appellants have purportedly filed a Notice of Withdrawal of their appeal pursuant to Order 8 Rule 6 of the Supreme Court Rules.
iv. The conditions precedent to the Supreme Court taking cognizance of any Notice of Withdrawal of an appeal by the appellants have not been complied with and/or not just available.
v. The Notice of Withdrawal filed by the appellants, apart from being premature is abusive of the processes of this Honourable Court.”
In his oral submissions on the 20/4/2010 before this court, the learned SAN for the 2nd respondent/applicant, stated that the motion is supported by a 19 paragraph affidavit to which there is no counter affidavit from the appellants/respondents. He urged this court to take it that all the points are admitted by the respondents. He made reference to paragraphs 5, 6, 8, 9, 10, 11, 12, 13, 14 and 15 of the affidavit in support. He referred also to several authorities including Ajomale v. Yaduat (No.2) (2003) FWLR (Pt.182) 1913 at 1925 D-E; Okoebor v. Police Council (2003) 12 NWLR (Pt.834) 444 at 483 B-C.
He submitted that it is incumbent on all courts to take all applications pending before a matter is determined one way or the other and failure to do that amounts to infringement on the part of the other party. The fact that the 2nd respondent was not heard on such fundamental issues amounts to a breach of his fundamental right to fair hearing. He urged us to grant the application.
The learned senior counsel for the appellants/respondents, Chief Fagbemi, SAN, sought leave from the court to allow his colleague Mr. Tarfa, SAN to handle the motion. Leave was accordingly granted.
In his submission Mr. Tarfa, SAN, made reference to Orders 8 Rule 6 of this court’s Rules where two sets of withdrawals’ are recognized. Withdrawal by consent of the parties and withdrawal without the consent of the parties. The orders to be made, he said are one of dismissal of the appeal and the other for striking out of the appeal. He argued that the right to withdraw, appeal is constitutional and cannot be taken away by any one. He urged this court to refuse and dismiss the application.
Both the motion on Notice and the Notice of opposition to withdrawal of appeal filed by the 1st and 2nd respondents/applicants respectively, were brought pursuant to Order 8 Rules 6  and,  of the Supreme Court Rules (as amended). The Order provides:
“(2). If all parties to the appeal consent to the withdrawal of the appeal without order, of the court, the appellant may file in the Registry the document or documents signifying such consent and signed by the parties or by their legal representatives and the appeal shall thereupon be deemed to have been withdrawn and shall be struck out of the list of appeal by the court, and in such event any sum lodged in court as security for the costs of the appeal shall be paid out to the appellant.
(4). If all the parties do not consent to the withdrawal of the appeal as aforesaid the appeal shall remain on the list, and shall come on for the hearing of any issue as to costs or otherwise remaining outstanding between the parties, and for the making of an order as to the disposal of any sum lodged, in court as security for the costs of appeal.”
(underlining supplied for emphasis)
The Rules referred to above as I understand them, made provision for the withdrawal of an appeal by an appellant even where there is no order of court where the following requirements are fulfilled:
a) all the parties must consent to the withdrawal
b) that there must be filed in the court’s Registry the document or documents signifying such consent.
c) that such document or documents must be signed by all the parties or their legal representative and
d) the appeal shall then be deemed to have been withdrawal and shall be struck out of the list of appeals pending before the court.
(That is the requirement of Order 8 Rule 6).
Order 8 Rule 6 provides that:
a) where all the parties do not consent to withdrawal of the appeal,
b) the appeal shall remain on the list (pending before the court)
c) the appeal shall come a for as for the hearing of:
i. any issue as to cost;
ii. any issue/matter otherwise remaining outstanding or pending between the parties, issue of costs aside, and
iii. for the court to make any Order, as appropriate, for the disposal of any sum lodged in court as security for the costs of appeal.
It is true that the appellants/respondents filed in this court a Notice of withdrawal of appeal as per Exhibit 6 exhibited in paragraph 15 of the affidavit in support of the motion on Notice file by the 2nd respondent. That exhibits read as follows:
“NOTICE OF WITHDRAWAL OF APPEAL PURSUANT TO ORDER 8 RULE 6 OF THE SUPREME COURT RULES 1999.
Take Notice that the appellants herein intend and doth hereby wholly withdraw their appeal, against all the respondents in the above mentioned appeal.
Dated at Abuja this 22nd day of January 2010.
Olusegun Jolaawo, Esq.,
Messrs Rickey Tarfa & Co.” ‘
(The appellant’s counsel),
No. 2 Libreville Street,
Off Aminu Kano Crescent,
Wuse ll, Abuja.”
It is my observation that the above Notice of withdrawal has fallen short of the above requirements, Order 8 Rule 6(2) and (4) of the Rules of this court.
Nowhere has any of the respondents in the appeal indicated his consent to the withdrawal of the appeal. This makes the Notice of withdrawal incompetent.
Secondly, although it is a Constitutional right of the appellant to decide not to proceed against any of the respondents as submitted by Mr. Tarfa, SAN, it must be appreciated that where the exercise of a right is circumscribed or limited by a rule of practice, and except where it is satisfactorily shown that compliance with such a rule has been waived, then that rule must be complied with. Court Rules are meant to be obeyed. See: Ezegbu v. FATB Ltd (1992) 1 NWLR
(Pt.216) 197 Iroegbu v. Okwordu (1990) 6 NWLR (Pt.159) 643; CCB (Nig.) Plc v. A-G Anambra State (1992) 8 NWLR (Pt.261) 528.
Where there is non-compliance, such non-compliance may result into any step taken to be a nullity.
Thirdly, by our Ruling of 10th March, 2010, this court, sitting in Chambers, dismissed the appeal. As at the date of that ruling, the following processes were pending before the court:
a) Notice of opposition to withdrawal of appeal Order, 8 Rule 6(4) Supreme Court Rules as amended in 2008, filed by the 1st respondent/applicant.
b) A motion on, Notice filed by the 2nd respondent on 15/2/2010 and fixed for hearing on 15/2/2010. It was for an Order for departure from the rules of this court pertaining to compilation of Records of appeal.
c) The appellants/respondents as per Exh. 1 attached to the affidavit in support of the motion by 2nd respondent/applicant, were aware, that the 2nd respondent was objecting to the withdrawal of the appeal.
d) Motion on Notice by 3rd respondent filed on 4/3/10 for extension of time to file a cross-appeal (fixed for hearing on 15/3/10)
Now, by the provisions of Order 8 Rule 6(2) as shown above, it is incumbent upon this court to determine all pending issues/matters in one way or the other before determining, the appeal in its finality. This court, in the case of Irole v. Uka (2002) 14 NWLR (Pt786) 195 at 225 D-F, held, inter alia:
“It is the duty of a court, whether of first instance or appellate to consider all the issues that have been joined by parties and raised before it for determination.
If the court failed to do so, without a valid reason, then it has certainly failed in its duty; for in our judicial system, it is a fundamental principle of administration of justice that every court has a duty to hear, determine and, resolve such questions.”
Thus, it would be wrong of a court to proceed to treat an appeal to its final conclusion when other processes are pending.
Though Order 8 Rule 6 of this court’s Rules empowers this court to consider any application under any such rules and determine it in chambers without oral arguments, the rule does not empower the court to obliterate or gloss over pending processes validly filed before the court. This will certainly amount to infringement of the respondent’s right to fair hearing. Where a decision has been found to be a nullity, this court has every power to set it aside. See the case of Mobil Prod. (Nig.) Ltd. v. Monokpo (2003) 18 NWLR (Pt.852) 346 at PP. 412 – 413, Uwaifo, JSC, stressed the point lucidly as follows:
“it has been laid down in many decisions that it is the duty of a court to entertain and decide on the merit of any application brought before it by any party notwithstanding the perceived strength or weakness of such an application. It seems to me that this principle of law has been solidly laid down by the Court of Appeal.
There are very many of its decided cases on it, a few may be cited thus: “Eguamwense v. Amaghizemwen (1986) 5 NWLR (Pt.41) 282; Harrods Ltd. v. Anifalaje (1986) 5 NWLR (Pt.43) 603; Kotoye v. Saraki (1991) 8 NWLR (Pt.211) 638; Mokwe v. Williams (1997) 11 NWLR (Pt.528) 309; Okoro V. Okoro (1998) 3 NWLR. (Pt.540) 65; Eriobuna v. Obiorah (1999) 8 NWLR (Pt.616) 622. Of the six cases cited above, Tobi JCA made pronouncements in the, last four in regard to the principle of law in question which I think well projected the principle. Whether in his leading judgments or his contributions in those cases, the learned Justice of Appeal made a consistent observation. To quote what he said in his leading judgment in Eriobuna v. Obiorah (supra) at page 642:
‘A court of law or a tribunal has a legal duty in our adjectival law to hear any process, including a motion before it. The process may be downright stupid, unmeritorious or even an abuse of court process. The court must hear the party or parties and the rule one way or the other. A judge, whether of a court of law or tribunal, has no jurisdiction to come to a conclusion by resorting to his own wisdom outside established due process that a motion cannot be heard because it has no merit. That does not lie in the mouth of a judge in our adversary system of adjudication. The failure on the part of the learned tribunal to hear the motion of the 1st appellant filed on 1st May, 1999 is against the provisions of section 33(1) of the 1979 Constitution on fair hearing, and particularly the natural justice rule of audi alteram partem.”
It was further emphasized that it is not only essential but mandatory for a court before which a motion (or application) has been brought to hear and determine it at the appropriate time. It has no right to refuse to hear it unless possibly in a proper circumstance in the exercise of its punitive jurisdiction against a contemnor of a court order who is expected to purge himself of the contempt before he could be heard. Otherwise the court must set the motion down and hear and determine it one way or another even if it might be of the opinion that the motion was brought, late and that what it seeks is downright irregular and frivolous. It has to give the applicant a hearing. It is a basic right. If for any reason the motion was not expeditiously drawn to the attention of the court by the court officials who ought, to do so that could be no excuse for simply discountenancing it when later the court came to learn of its existence and instead proceeding to give judgment or make some order more particularly when a decision on the motion was likely to have had a bearing on the judgment or order. The adversarial system of our justice administration demands no less.
A refusal of a court to hear a motion pending is a breach of the right to a fair hearing guaranteed under the Constitution and an essence of the AUDI ALTERAM PARTEM rule of natural justice. It is perhaps important to add that if a judge or court were at liberty to decide to ignore any motion or process filed in court it would raise a fundamental issue. The danger inherent therein, is that instead of allowing the administration of justice to be done upon a compulsory even keel, it may now be left to the tyranny of the arbitrary or selective decision of a particular judge or court as to if, and when; any motion will be considered at all.
This court and, any other court are enjoined by the Constitution and the Rules of natural justice to observe such, rules that ensure a fair hearing/trial and this includes chamber sittings where parties are absent and unrepresented.
Their submissions on the issue/matter under consideration are presented by the processes and their accompanying attachments.
I pointed out earlier that no fair hearing was granted to the 1st and 2nd respondents/applicants when the appeal was dismissed by this court in chambers. That amounts to a nullity. I accordingly set aside, ex-debito justitiae, all the proceedings including of course, the judgment given on 10th March, 2010.
The Notice of Appeal filed at the court below on 14/12/2009 is hereby restored. This, settles as well, the Notice of opposition to withdrawal of appeal filed by 1st respondent/applicant; Relief 1and the alternative relief prayed by the 3rd respondent/applicant in its motion on Notice filed on 5/4/10.
B – processes in number (i)above.
This is a motion on Notice filed by the appellants/applicants. It prays for the following reliefs:
1) “AN ORDER of this Honourable Court bringing forward the next adjourned date in this matter from the 1st, of April, 2010 to a much earlier date convenient to this Honourable Court;
2) “AN ORDER of this Honourable Court setting aside or otherwise vacating its earlier order made/dated 15th day of March, 2010 which order stayed the delivery of the judgment of Court of Appeal in Appeal No. CA/S/GOV/10/2009 which was made pending the hearing and determination of the motions filed in the Supreme Court and adjourned to the 1st day of April, 2010 for hearing;
3) AN ORDER of this Honourable Court dismissing or otherwise striking out all other pending applications filed by any of the other respondents to the appeal of the Appellants/Applicants which was dismissed on 10th March, 2010 but more specifically an order dismissing or otherwise striking out;
i. 2nd Respondent/Applicant
Motion dated 11/2/2010 filed 11/2/2010 seeking:
a) Departure from the Rules
b) Stay of proceedings in Appeal No. CA/A/276/08 from which the appeal in this court emanated.
c) Stay of proceedings in CA/S/EP/GOV/10/09 which is an election petition appeal and in respect of which the Court of Appeal is the final Court of Appeal
d) Accelerated hearing of the appeal
e) Omnibus prayer;
ii, 1st Respondent’s undated motion filed on 1/3/10 in opposition to withdrawal of appeal pursuant to Order 8 Rule 6 Supreme Court Rules;
iii. 3rd Respondent’s motion dated 4/3/10 filed same date seeking:
a) Extension of time for Respondent/Applicant to file cross appeal.
b) Order deeming notice of cross appeal filed as duly filed and served.
AND FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the Circumstances of this application.”
Relief No.1 was abandoned and it was struck out.
On relief No. 2, the learned SAN for the appellants/applicants, L.O. Fagbemi argued orally on the 19th day of April, that the application was supported by a 31paragraph affidavit, premised on 12 grounds. He made reference to the judgment of the Federal High Court, Abuja which declined jurisdiction. None of the respondents appealed against that decision, but the appellants did.
In the Court of Appeal Abuja, the appellants/applicants asked for leave to amend their Notice of Appeal by raising fresh points on appeal. The Court of Appeal refused them leave. It was against that refusal for leave to effect amendment as proposed that made the applicants to appeal to this court.
In the meantime, appellants withdrew the appeals they filed in the Court of Appeal and in this court. He cited Exh. E annexed to the affidavit in support.
Learned SAN made further submissions that the appeal in this court has been withdrawn by Exh; F and Exhs. J1-J3 which bear testimony to that effect.
The grounds in support of relief (2) of the application are as follows:
“5. The Order made by the Supreme Court on 15th March, 2010 which stayed the proceedings before the Court of Appeal Sokoto was made in respect of a gubernatorial election petition appeal, over which the Supreme Court has no jurisdiction, whatsoever.
- No decision had been given in the said gubernatorial appeal, and no notice of appeal, however unconstitutional or incompetent, had been filed by any of the respondents to the Supreme Court in respect of the said gubernatorial election petition appeal to vest jurisdiction in the Supreme Court to hear and determine any interlocutory applications appertaining to the said gubernatorial appeal
- The appeal and proceedings pending before Court of Appeal Sokoto which, the order of this Honourable, Court dated the 5th March, 2010 stayed are an appeal and proceedings from a decision of a tribunal in a governorship election petition which by its nature is sui generis and cannot be stayed.
- The order of this Honourable March, 2010 was made to stay an election petition appeal which had been adjourned for judgment and which judgment the panel had issued hearing notice to deliver; and the order was made in anticipation of the judgment.
- The Supreme Court did not have the minimum constitution quorum of five justice, and was thus not duly constituted as a court know to law, as at the time the order staying proceedings of the gubernatorial appeal on 15th March, 2010 was made, because the presiding justice (Hon. Justice Dahiru Musdapher) who wrote the lead ruling comprising, the order had already disqualified himself PRIOR TO THE RULING.
- In the absence of an appeal from the court of appeal Sokoto Division in the gubernatorial election petition in appeal no. CA/S/2008 to the Supreme Court, the proceedings of 15th May, 2010, and the issues raised in the several pending motions filed by each of respondents concerning that appeal, amounted to an unconstitutional activation of the original jurisdiction of the Supreme Court contrary to, section 232 of the Constitution of the Federal Republic of Nigeria, 1999.”
Learned SAN submitted that the point still, remains that the court was improperly constituted. Section 233 of the Constitution does not apply in respect of election matters in respect of which Court of Appeal is the terminus.
Happily, the Ruling of this court on the 15th day of March, 2010 has been annexed as Exh. K (1-2). It reads as follows:
“(Delivered by DAHIRU MUSDAPHER, JSC)
The matter cannot go on today in view of the reasons stated earlier. But in the interest of justice and fair play the oral application to preserve the res is hereby granted All proceedings in this matter now pending before the Court of Appeal Sokoto in suit, No.CA/S/EP/GOO/10/09 is hereby stayed pending the determination of the motions filed in this court, which motions are now adjourned to. 1/4/2010 far hearing.”
Other justices that sat with Musdapher, JSC an that matter, concurred with him on the ruling he delivered in open court.
It is clear that the order of stay of proceedings was made subject to the determination of the motions filed in this court. The final day for the determination of all the motions filed in respect of this matter is today when rulings are delivered on the several motions. This means that at the end of delivery of our rulings, that order lapses. In my view, such an order which is made subject to an event happening, once the event has taken place, the order lapses. It is rather self-executory requiring no formal order of the court to set it aside. But for the avoidance of doubt, that order is hereby vacated.
The relief claimed in relief No. 3 of the said motion on Notice cannot be granted. This is because each of the processes listed therein has been taken care of in this ruling. Relief N. 3 of the said motion is hereby struck out.
C-Processes in [v]
This is a motion on Notice filed by the learned SAN for the 2nd respondent. It prays for the following reliefs:
“1. AN ORDER granting a departure from the Rules of this Honourable court by:
i. Allowing and/or directing parties to make use, of the record of proceeding of the lower court as
compiled by the applicant for the purpose of this appeal.
ii. Accepting for the purpose of this appeal the record of proceedings of the lower court as compiled, by the applicant with liberty to any party to file a supplementary record if he considers that the record as compiled by the applicant is inaccurate/inadequate.
- AN ORDER staying proceedings at the Court of Appeal, Abuja Judicial Division in Appeal No.CA/A/276/08 which relates to and concerns the subject matter of this appeal until the final determination of this appeal.
- AN ORDER staying proceedings at the Court of Appeal, Sokoto Judicial Division in Appeal No.CA/S/EP/GOV/10/09 which relates to the subject matter of this appeal until the final determination of the appeal by the apex court.
The grounds upon which relief 1 is predicated are as follows:
“xi. Appellants whose appeal is pending before this court have refused to compile the record of proceedings or ensure its compilation and transmission to the Supreme Court, while forum-shopping on the same subject before two different divisions of the Court of Appeal.
xii. Applicant has in the interest of justice compiled the record and certified same for expeditious use at the Supreme Court.
It is to be noted that this application was brought pursuant to Order 2 Rule 31 and Order 7 Rule 5 of the Supreme Court Rules. (As amended in 1999).
Order 2 Rule 31  provides:
“The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply, or may direct a departure from these Rules in any other way when this is required in the interest of justice.”
Order 7 Rule 5 provides:
“The court may in any case in which it considers it necessary or expedient so to do in the interest of justice, or in any case in which it makes an order for accelerated hearing of the appeal, direct a departure from rules 2,3 and 4 of this order.”
Order 2 Rule 31 deals principally with enlargement of time for the doing of anything to which these rules apply. Order 7 Rule 5 largely, is on departure from the rules of court but especially rules 2, 3 and 4 of Order 7.
In his affidavit in support the learned SAN for the 2nd respondent through a counsel in his chambers Mr. Adeyemi, who swore to the affidavit deposed to the following facts:
“9. I also know as a fact that while appellants were/are vigorously pursuing their appeal at the Sakata Division of the Court of Appeal, they have refused to ensure the compilation and transmission of the record of proceedings from the Court of Appeal to the Supreme Court.”
There is no counter-affidavit from the appellants/respondents as to why no record of appeal has been transmited to this court. The response of the appellants/respondents to this, as submitted by. Mr. Tarfa, SAN, is that the appellants/respondents did not file a counter affidavit but they would oppose the application on points of law relying on the facts presented in the applicants’ affidavit in support arid no need to file a counter affidavit. He relied on the case of Royal Exchange Assurance Ltd v. Vaswani Trading Co. Ltd. (1992) 3 NWLR (Pt. 227) 1 at 13D. He made further submissions that where a statute creates rights and obligations; it is only through that statute that one can bring an application. He relied on the Rules of this court, Order 2 Rule 31(1) which provides for a departure from the Rules and for extension of time. He argued that no application had been made by the applicant for extension of time as required by Order 7 Rule 5(1). Rules 6 and 7, he said, apply to interlocutory decisions from the Court of Appeal. The appeal from the Court of Appeal to this court is an interlocutory one and the provisions of Order 7 Rules 6 and 7 are applicable for the transmission of record to this court. He submitted that Order 7 Rules 2, 3 and 4 relate to final decisions of the Court of Appeal. But under Order 7 Rules 6 and 7, it is an appellant who will compile the record not any of the parties. The application must be done within 14 days. Learned counsel argued further that the only right available to the applicant is to apply for the dismissal of the appeal and not to compile record by themselves.
It is to be appreciated from the outset that Order 7 Rule 1(1) stipulates that the provisions of rules 2, 3 and 4 of that Order shall apply to appeals to this court from final decisions of the Court of Appeal in civil and criminal cases. Sub rule 2 states that the provisions of rules 6 and 7 of the same Order shall apply to any decision of the Court of Appeal in respect of matters relating to interlocutory decisions such as the one on hand. Now Order 7 Rules 6 and 7 provide as follows:
“6. it shall not be necessary for the Registrar of the Court of Appeal to prepare a record in respect of an appeal of the type mentioned in sub-rule  of rule 1 of this Order unless the court otherwise directs, and accordingly, the record for the purpose of such appeals shall be prepared in the manner set forth in rule 7 of this Order.
- (1) The appellant shall, in appeals to which this rule applies either simultaneously with filing his notice of appeal or within 14 days thereafter, prepare for the use of the justices a record comprising-
a) The index;
b) Office copies of documents and proceedings which the appellant considers relevant to the appeal; and
c) A copy of the notice of appeal.
(2) If the respondent considers that the documents and proceedings filed by the appellant are inaccurate or are not sufficient for the purposes of the appeal, he shall, within a period of 7 days after service on him of the record filed by the appellant, file any further or other documents that he wishes to file.
(3) All documents filed by either party shall be verified by the affidavit of a person who has read them and compared them with authentic or certified true copies.
(4) In the case of the documents and proceedings mentioned in rule 7(1)(b) and (c) of this Order, the party filing them shall lodge certified true copies thereof with the Registrar of the Court.” (underlining for emphasis)
It is clear to me from the above that:
a) His not necessary, for the registrar of the court below to prepare a record in respect of an interlocutory appeal except where the court otherwise directs.
b) It is the primary obligation of an appellant to file record of interlocutory appeal.
c) Record of Appeal in respect of interlocutory appeals from the Court of Appeal to this Court shall be prepared in the manner set forth in rule 7 of Order 7 of the Rules of this court.
The requirements of Order 7 Rule 7 are that:
i. the appellant in an interlocutory appeal shall file along with his Notice of Appeal (simultaneously) a record of his appeal or, alternatively;
ii. shall file the record of appeal 14 days from the date of filing his Notice of Appeal.
iii. the record shall comprise of index, office copies of documents and proceedings which he considers relevant to the appeal, and a copy of the Notice of appeal.
d) The respondent is at liberty, within a period of 7 days after service on him of the record filed by the appellant, to file any further or other documents that he considers necessary, if he finds the documents and proceedings filed by the appellant to be inaccurate or insufficient (supplementary record).
e) all documents filed by either the appellant or the respondent shall be verified by a verifying affidavit of a person who has read and compared them with authentic or certified true copies thereof .
f) documents and proceedings in respect of provisions made pursuant to rule 7[b] and [c], the party filing them shall lodge certified copies thereof with the Registrar of this court.
From the above therefore, the responsibility of compiling a record of appeal in respect of an interlocutory appeal from the Court of Appeal to this court falls squarely on the shoulders of the appellant within the time limit specified for him by the rules. The respondent, under Order 7, Rule , is at liberty to file what I regard as a supplementary record or documents or proceedings within 7 days only after the appellants has served him with the record he has compiled. What happens, then where the appellant, as in this case, fails to compile such a record Is asking for the dismissal of the appeal the only option adequate and available to the respondent Or, can the respondent just fold up his arms to watch helplessly what will happen, or When will anything happen to the appeal to which he is willy-nilly drug into I think there should be something more to this.
I have noticed that the Notice of Appeal in this appeal was filed on the 14-12-2009 and the motion for departure from the rules was filed on 12/2/2010, a period of almost two month with none of the parties filing the record of appeal. It would have been within time if the appeal was on a final decision of the court below which allows for six months within which to compile and transmit record of appeal. Although, the responsibility was entirely that of the appellant to compile the record, I think where the appellant fails to do so and the respondent is desirous of compiling such a record the question of 14 days or 7 days within which to compile same does not arise as he is not the appellant. And, as no time limit has been given by the Rules for the compilation of a record of appeal by the respondent by way of departure from the Rules, the question of extension of time to do so by the respondent does not arise. Even if it arises, it shall be left to the discretion of the court. I am therefore disposed to granting 2nd respondent’s reliefs on compilation of record of appeal in respect of this interlocutory appeal now that the appeal is fully restored. If there is any non-compliance with any of the Rules of court in that respect, I think that can be waived under Order 10 Rules,  and  of our Rules in the interest of justice and in order to allow the appeal to be decided on merit, more especially when the 2nd respondent has already filed two volumes of certified true copies of the record of appeal from the court below.
D- Process in number (viii) above.
This is a motion on Notice for an Order extending the, time for the 3rd respondent to cross-appeal, etc. It was dated and filed on 4/3/2010.
On 21/4/2010, when this motion was called for hearing, the learned SAN, for the 3rd respondent, Dr. Izinyon, stated among other things and in respect of this motion as follows:
“On my 2nd application, the application is not ripe for hearing until ruling is delivered on these applications i.e. the motion of 4/3/2010 because this court must decide whether there is an appeal subsisting or not. It will be premature to move it.”
I think these amounts to abandoning the motion as of now. It will serve no purpose to allow it to be in limbo in our files. I hereby strike out the motion.
E – Process in number(iii) and other related reliefs
This is a motion on Notice dated and filed on 29/3/2010. It was filed by the learned counsel for the 1st respondent. Mahmood Esq. The motion prays for the following reliefs:
“. AN ORDER of this Honourable Court preserving the RES and/or subject matter of this appeal which is the Sokoto State Governorship 2007 and 2008 election and re-election dispute.
. AN ORDER of this Honourable Court directing the Court of Appeal, Sakata to suspend and/or stay the delivery of judgment in Appeal No. CA/S/EP/GOV/10/09 on the same subject matter pending the completion of investigations into serious allegations against the Hon. President of the Court of Appeal and the Hon. Justices hearing the appeal.
. SUCH OTHER OR FURTHER ORDER[S] as the Honourable Court shall deem fit to make in the circumstances.”
The learned SAN for the 3rd respondent asked for same reliefs. This is contained in his relief No. 3 of the motion on Notice dated 7/4/10 but filed on 8/4/10. His alternative relief in prayer 2 thereof is deemed abandoned in view of my holding on his relief No.1 which I earlier on considered along with same reliefs by the other respondents.
The learned SAN for the 2nd respondent in his application of 11/2/2010 couched his reliefs 2 and 3 as follows:
“2. AN ORDER staying proceedings at the Court of Appeal, Abuja Judicial Division in Appeal No. CA/A/276/08 which relates to and concerns the subject matter of this appeal until the final determination of this appeal.
- AN ORDER staying proceedings at the Court of Appeal, Sokoto Judicial Division in Appeal No. CA/S/EP/GOV/10/09 which relates to the subject matter of this appeal until the final determination of the appeal by the apex court.”
Several grounds in support of the applications were raised. They are almost similar in nature and effect. I think it will suffice if I cite the grounds raised by the 2nd respondent in support of his reliefs 2 and 3. They are as follows:
i. ”The subject matter of the proceedings before the Court of Appeal, Abuja Judicial Division in Appeal No. CA/A/276/2/08 and the one before the Court of Appeal, Sokoto Judicial Division, in appeal No. CA/S/EP/GOV/10/09 is one and the same.
ii. The said subject matter relates to and concerns the Governorship seat/election of Sokoto State, more particularly concerning the participation of the applicant as directed by the Court of Appeal, Kaduna Judicial, Division in its judgment in Appeal No. CA/K/EP/GOV/60/07 dated, 11th April 2008.
iii. Appellants herein went to the Federal High Court; Abuja in suit No. FHC/ABJ/CS/260/08 praying for the interpretation of the said judgment of the Court of Appeal, Kaduna Judicial division, but the Federal High Court’s judgment dated 17th July, 2008 was/is given against them.
iv. Dissatisfied with the judgment of the Federal High Court, appellants appealed to the Court of Appeal, Abuja, Judicial Division in Appeal No. CA/A/276/08, praying the court principally to declare that as per the judgment of the Court of Appeal, Kaduna Judicial Division aforementioned, 2nd respondent/applicant was/is disqualified from contesting the Sokoto State Governorship re-run election held on 24th May, 2008.
iv. While the appellant’s appeal was/is still subsisting at the Abuja Judicial Division of the Court of Appeal, appellants again filed a petition before the Election Petition Tribunal, Sokoto, in petition No. SS/EPT/GOV/1/08 praying in the main for the same relief, to wit, that as per the judgment of the court of Appeal, Kaduna Judicial Division afore-mentioned, applicant was not qualified to contest the said Sokoto State Governorship re-run election held on 24th May, 2008.
vi. Appellants were dissatisfied again with the judgment of the Election Tribunal, Sokoto delivered on 18th February, 2009 and appealed to the Court of Appeal, Sokoto Judicial Division, in appeal No. CA/S/EP/GOV/10/09.
vii. While the appeal at the Court-of Appeal, Sokoto was/is subsisting, appellants kept on pursuing their appeal vigorously at the Court of Appeal, Abuja Judicial Division and applied to the applied to the court to raise a fresh issue, to wit, on the enforcement of the judgment of the Court of Appeal, Abuja Judicial Division (sic) by the Federal High Court relating to the disqualification bf the applicant.
viii. The ruling of the Court of Appeal, Abuja Judicial Division given on 30th November, 2009 went against the appellants and they have appealed to this court as per their Notice of Appeal filed on 14/12/09.
ix. In the Notice of Appeal to this court, appellants are praying the court to invoke section 22 of the Supreme Court Act to determine the substantive appeal on the merits a prayer which the applicant does not wish to oppose.
x. The determination of this appeal, and resolution of the simple issues involved therein, to wit, construction of the judgment of the Court of Appeal, Kaduna Judicial Division in Appeal NO. CA/K/EP/GOV/60/07 date 11th April, 2008 on whether or not by that judgment 2nd applicant could rightly participate in the re-run Governorship election held on 24th May, 2008 will dispose off all the pending appeals at the Court of Appeal at both Abuja and Sokoto Judicial Divisions and save the lower court from giving conflicting judgments in three Judicial Divisions, to wit, Kaduna, Abuja and Sokoto.”
Each of the applications is supported by copious depositions of facts in their supporting affidavits. The appellants/respondents filed a counter-affidavit in respect of the 1st, 2nd and 3rd respondents’ motions on Notice containing the reliefs in question.
In his oral submissions, the learned counsel for the 1st respondent argued that paragraphs 1 – 10 of his affidavit in support show that the appellants were in forum shopping as matters between the two courts in Sokoto Division and Abuja Division of the Court of Appeal are the same. He asks that this court should grant the application and that a final order be made in the interest of justice. In his submissions, the learned SAN for the 2nd respondent stated that he is in support of the motion moved by the learned counsel for the 1st respondent. He stated further that as an officer of the court, he would address this court in respect of the prayers contained in that motion. He drew attention to Exb. B – Judgment of Court of Appeal, Kaduna of 11/14/08, particularly to page 69 thereof Orders 3 and 4. They are orders made by a superior court. He referred also to Exh. C. The appellants never applied for a review of the judgment neither at Court of Appeal Abuja nor at Sokoto Court of Appeal under Order 18 Rule 4 of the Court of Appeal Rules. If there was any ambiguity, that particular court would have clarified it. Further, the appellants did not go back to the Court of Appeal Kaduna for interpretation of its earlier judgment. The learned SAN argued further that if the appellants had succeeded in the Federal High Court; Abuja in suit No. FHC/ABJ/CS/260/2008, filed on 25/4/08, whether on interpretation or construction of the judgment of the Court of Appeal Kaduna, the 1st appellant would have become the governor of Sokoto State while 2nd respondent would have been disqualified. Petition No. SS/PPT/GOV/01/08 filed by the appellants wouldn’t then, have been filed. By the same token, he argued further, if the appeal CA/A/276/2008, at Abuja, Court of Appeal succeeded, the appellants would not have filed same appeal before the Court of Appeal Sokoto Division a year later in appeal No. CA/S/GOV/10/2009. The cases are the same, in substance and in-form. This court’s duty, he stated, is to find out the truth. He cited the case of Agidi v. Kelani (1985) 3 NWLR (Pt/12) 248, per Oputa, JSC.
Submitted further on behalf of the 2nd respondent is that the latter action before the Sokoto Court of Appeal and Tribunal is the RES. This court has a right to stop the drift by granting the motion. He cited the case of Igwe v. Kalu (2004) 14 NWLR (Pt.787) 435 at 453-454 G-H. Learned SAN submitted that the appellants are guilty of abuse of Court processes and blockage from access to court. He made reference to section 22 of the Supreme Court Act, relied by this court in the case of Skenconsult (Niq.) Ltd. v. Ukev (1981) 1 SC 6 at 38 – 39. He urged this court to invoke its power under section 22 of its Act as there is no room for forum shopping and in order to arrest judicial anarchy, otherwise administration of justice will be brought to disrepute.
The learned SAN for the 3rd respondent/applicant in his submissions, stated that he adopted in toto the submissions, made by the learned SAN for the 2nd respondent. He referred to Order 8 Rule 6(4), the word “otherwise” used therein to include abuse of court process; forum shopping which the court can make an Order to stop the abuse. The action which is later in time is the one to be dismissed in any case of abuse of court’s process. It is one and the same issue in all the matters before the two Courts of Appeal of Abuja and Sokoto.
In his submission in opposition to the motions/reliefs afore stated, the learned SAN for the appellants/respondents, learned SAN for the appellants/respondents, Mr. Fagbemi, drew this court’s attention that what brought the appellants to this court is the refusal of the Court of Appeal Abuja to grant them leave for amendment of their Notice of Appeal. No way by which this court can make an order to affect the substance of the appeal before the Sokoto Court of Appeal which is pending for decision. He said that he filed a counter-affidavit of 30 paragraphs on 15/4/10. He relied on the counter-affidavit and the exhibits attached. He submitted that an applicant is bound by the reliefs he seeks in his motion papers. He cited the case of Commissioner for Works Benue v. Devcon (1988) 3 NWLR (Pt.83) 407 at 420.
Learned SAN submitted further that invoking section 22 of the Supreme Court Act will not alter the decision of the Federal High Court and the Court of Appeal. He distinguished the case of Amechi v INEC (supra) from the appeal on hand. Further submissions are that the respondents realized there is a pending appeal in the Sokoto Division in respect of a Governorship Election Petition. It is not in dispute that it is an election matter and this court will not tamper with that jurisdiction, nor any order which will frustrate the Sokoto matter. Learned SAN stated that he attached a copy of the brief filed by the respondents i.e. Exh. 3 attached to the counter-affidavit in which the question of abuse was raised on an election petition and all arguments were canvassed therein. He urged this court to dismiss the application.
Now, the 2nd respondent is asking for an order staying the proceedings at the Court of Appeal, Abuja in Appeal No. CA/A/276/08 and also for an order staying proceedings at the Court of Appeal, Sokoto in Appeal, No. CA/S/EP/GOV/10/09. The 2nd and 3rd respondents ask for an order directing the Court of Appeal, Sokoto to preserve the RES and to suspend and or stay the delivery of judgment in CA/S/EP/GOV/10/09.
What is the genesis of the appeal before the Court of Appeal, Abuja Equally, what is the genesis of the appeal before the Court of Appeal Sokoto From the Record of appeal before me election into the office of the Governor of Sokoto State was held on the 14th of April, 2007 and INEC returned the 2nd respondent, who was fielded by the PDP as the winner of the election, having scored 392,258 votes, against other contestants. The 1st appellant who was fielded by the DPP, polled 296,416 votes filed a petition before the Sokoto State governorship Election Tribunal in petition No. SS/EPT/GOV/1/2007 challenging the election on the grounds of disqualification of the 2nd respondent, based on double nomination. The tribunal dismissed the petition on the 29/12/2007 holding that 2nd respondent was properly nominated and he won the election by majority of lawful votes. The 1st appellant appealed against the tribunal’s decision to the Court of Appeal, Kaduna in Appeal No. CA/K/EP/GOV/60/2007. The Court of Appeal Kaduna, allowed the appeal, nullified the election and ordered that fresh election between the same parties and the same candidates be conducted within 90 days. Before the said election or re-run election could take place, the 1st appellant filed an originating summons before the Federal High Court Abuja on 20th day of April, 2008 praying among other thins for the interpretation of the judgment and the disqualification of the 2nd respondent from contesting the re-run election as ordered by the Court of Appeal, Kaduna. The 1st appellant appealed to the Court of Appeal Abuja and while the appeal was pending, his counsel filed an application for leave to raise fresh issue i.e. the Federal High Court Abuja had power to enforce the judgment of the Court of Appeal, Kaduna. The application was refused by the Court of Appeal, Abuja. 1st appellant appealed further to this court. That is the appeal on hand.
Meanwhile INEC, 1st respondent, conducted the re-run election as ordered by the Court of Appeal, Kaduna and the 2nd respondent again won by 562,395 votes as against the 1st appellant who scored 124,046 votes. Dissatisfied again, the 1st appellant filed a petition before the 2nd Sokoto State Governorship Election Tribunal. The 2nd Election Tribunal in Sokoto dismissed the petition on the premises that it had no jurisdiction to interpret the judgment of the Court of Appeal Kaduna and that the petition was an abuse of process as the same issue of interpretation, enforcement or construction of the judgment of Court of Appeal Kaduna was still pending at the Court of Appeal, Abuja as a pre-election issue. The 1st appellant appealed further to the Court of Appeal Sokoto.
The 2nd respondent/application is asking this court to stay proceedings at the Court of Appeal, Abuja Judicial Division in Appeal No. CA/A/276/08. In addition to this, the 1st and 3rd respondent ask this court to stay or suspend proceedings or delivery of judgment at the Court of Appeal Sokoto Division in Appeal No. CA/S/EP/GOV/10/09, all pending the determination of this appeal. The bone of contention is that the appeals in both Abuja and Sokoto Divisions of the Court of Appeal relate to and concern same subject matter.
But, what are subject matters filed and pending for a decision before each of these courts
The initiating process for an appeal before an appellate court is the Notice of Appeal. The Notice of Appeal contains what the subject matter of that appeal is. The Notice of Appeal filed at the Federal High Court Abuja against the judgment of 17th July, 2008 contains grounds of appeal which challenged the pronouncements of the learned trial Judge of the Federal High Court on the question submitted by the plaintiffs to that court for determination and the reliefs sought. Quoting from the judgment of the Federal High Court Abuja of 17th July, 2008, the learned trial judge set out the questions submitted by the plaintiffs for determination and the reliefs sought.
“Whether the 1st defendant or any of its officers can lawfully issue fresh nomination forms to the 2nd defendant, or allow the 3rd defendant to nominate and or sponsor any candidate for the fresh elections for the office of the Governor of Sokoto State of Nigeria ordered by the Court of Appeal in its decision in AHAJI MUHAMMADU MAIGARI DINGYADI & ANOR V. ALIYU MAGATAKARDA WAMAKKO & 42 ORS Appeal No. CA/K/EP/GOV/60/2007 delivered on the 11th day of April, 2008.
Whether the 2nd defendant having been declared not qualified to contest the gubernatorial elections of 14/4/07 held in Sokoto State, in the decision of the Court of Appeal in CA/K/EP/GOV/60/07 delivered on 11/4/08 and the said elections declared nullified on the ground of the 2nd defendants non-qualification to contest same, the 2nd defendant can contest in the fresh elections ordered by the Court of the Appeal to be conducted by the 1st defendant in the said decision.
Whether in the light of the decision of the Court of Appeal in CA/K/69/2008, LABOUR PARTY V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (unreported) delivered in 10/4/08 confirming the earlier decision of the same court in Honourable MOHAMMED SALISU A. ALAWU & ANOR. V. ABBAS M. YAKUBU & 2 ORS. or CA/K/EP/SHA/30/2003 (unreported) delivered on 6/11/03, the 3rd defendant has the right to nominate and or put forward the 2nd defendant or any other candidate for the fresh elections ordered to be conducted by the 1st defendant in Sokoto State by virtue of the decision of the Court of Appeal in CA/K/EP/GOV/2007 between ALHAJI MUHAMMADU MAIGARI DINGYADI & 1 ORS. V. ALIYU MAGATAKARDA WAMAKKO & 42 ORS. on 11/4/08.
Whether the list of candidates ordered by the Court of Appeal in its decision in CA/K/EP/GOV/60/07 to contest the fresh elections to be conducted by the 1st defendant as contained in Exhibit R8 contemplates or includes a person judicially and legal disqualified in the self same decision which is a final and subsisting decision of a Court of competent jurisdiction.
Whether by virtue of the decision of the Court of Appeal in Appeal No. CA/K/EP/GOV/60/07, particularly the judgment orders thereof, the 3rd defendant can lawfully nominate any candidate for the fresh elections ordered by the Court of Appeal, their original candidates having been declared by the court in the said decision not to be qualified to contest elections as at 14/4/07.
Upon the determination of these questions, the plaintiffs sought the reliefs set out below:
A DECLARATION that neither the 1st defendant nor any of its officers can lawfully issue fresh nomination forms to the 2nd defendant or allow the 3rd defendant to nominate and or sponsor any candidate(s) for the fresh elections ordered by the Court of Appeal in its decision of 11/4/08 in CA/K/EP/GOV/60/07.
A DECLARATION that the 2nd defendant having been not qualified to contest the Sokoto State Gubernatorial elections of 14/4/07 by virtue of invalid nomination and double nomination, he cannot lawfully contest in the fresh elections ordered by the Court of Appeal in its decision in CA/K/EP/GOV/60/07 by virtue of his said disqualification.
A DECLARATION that the 3rd defendant does not have the right to nominate or put forward the 2nd defendant or any other candidate for the fresh gubernatorial elections ordered to be conducted by the 1st defendant in Sokoto State by virtue of the decision in CA/K/EP/GOV/60/07 ALHAJI MUHAMMADU MAIGARI DINGYADI & 1 ORS V. ALIYU MAGATAKARDA WAMAKKO & 42 ORS on 11/4/07.
A DECLARATION that the list of candidates ordered by the Court of Appeal in its decision of 11/4/08 to contest the fresh elections as contained in exhibit R8 in ALHAJI MUHAMMADU MAIGARI DINGYADI & 1 OR V. ALIYU MAGATAKARDA WAMAKKO & 42 ORS Appeal No. CA/K/EP/GOV/60/2007 does not contemplate or include a person judicially and legally disqualified from contesting the election in the self same decision which is a subsisting judgment of a competent court.
A DECLARATION that the 3rd defendant, its gubernatorial candidate for the elections of 14/4/07 having been declared not qualified to contest the said elections, cannot now nominate fresh candidate(s) for the fresh elections, the time statutorily stipulated for the nomination of candidates for the gubernatorial election having elapsed.
A PERPETUAL INJUNCTION restraining the 1st defendant from allowing the 2nd and 3rd defendants to contest in the fresh elections ordered by the Court of Appeal in CA/K/EP/GOV/60/2007, the court of appeal having held that the 2nd defendant was not qualified to contest the gubernatorial election as at 14/4/07, and the time for nomination of candidates having elapsed well before 14/4/07.
AN ORDER OF MANDATORY INJUNCTION setting aside any or all steps taken by the 1st defendant to enable the 2nd and 3rd defendants to participate in the fresh elections ordered by the Court of Appeal in its decision of 11/4/08 in CA/K/EP/GOV/60/2007.”
At the conclusion of hearing, the trial court held, inter alia:
“I have no option than to toe the line drawn by the superior courts and hold that in so far as the originating summons herein is calling for the interpretation of the judgment of the Court of Appeal in CA/K/EP/GOV/60/2007 between ALHAJI MUHAMMADU MAIGARI DINGYADI & 1 OR. V. ALIYU MAGATAKARDA WAMAKKO & 42 ORS; it is incompetent and the court lacks the jurisdiction to embark of the interpretation of the judgment in question.” (underlining for emphasis).
Thus, it is beyond dispute that the issue placed before the Federal High Court Abuja, as found by the learned trial judge was on the subject matter of interpretation of the judgment of the Court of Appeal, Kaduna. Although none of the parties herein exhibited the original Notice and Grounds of Appeal from the proposed Amended Notice of Appeal as analysed by the Abuja Court of Appeal (page 3 of its ruling of 30/11/09 delivered by Bada, JCA) and as exhibited in the various processes in support on in opposition of grant of this motion that the fresh point sought to be filed and argued but which was refused by the Court of Appeal, Abuja reads as follows:
“8(d) that the further discovered that there is a need to argue a fresh point on appeal, not raised before the trial court to wit:
‘that the lower court has the jurisdiction vested in it by virtue of section 287(2) of the Constitution of the Federal Republic of Nigeria, 1999 to enforce the judgment of the Court of Appeal, being a court of subordinate jurisdiction to it.”
It is clear from the (proposed) Amended Notice of Appeal filed by the appellants/respondents. Exhibited as Exh. G, in the application filed by 3rd respondent/applicant that the other grounds were challenging the pronouncement of the learned trial judge where he said he agreed with the position of the defendants, now respondents, that the subject matter of the plaintiff’s case is the interpretation of the judgment of the Court of Appeal Kaduna in the suit referred to above. (see page 880 of that motion on Notice).
The Court of Appeal Abuja, itself before which the decision of the Federal High Court Abuja was appealed against made a finding as follows:
“in this application under consideration, a careful perusal of the records of proceedings and the sworn affidavit of the appellants at the lower court showed unequivocally that what the appellants sought at the lower court was the interpretation of the judgment of this Court in suit NO. FHC/ABJ/CS/200/08.” (underlining for emphasis).
Bada, JCA, cited instances from the affidavits, which, I too, consider relevant for the determination of this application. The learned JCA stated:
“In my humble view, to accede to the appellant’s prayers, to argue fresh point on appeal not raised before the lower court to wit jurisdiction to enforce decisions of Court of Appeal contrary to interpretation of the decision of the Court of Appeal earlier brought before the lower court would amount to this court taking a fresh cause of action and assuming jurisdiction contrary to the provisions of section 240 of the 1999 Constitution. In effect what the appellants/applicants want to do in this court with the leave being sought is to change the subject of the case which they brought before the lower court. Whereas an appeal is generally a continuation of hearing and it should not be an invention of a new cause of action.”
Thus, with the refusal of the Court of appeal Abuja to grant amendment of Notice of Appeal in respect of the enforcement sought the subject matter before it still remains as found by the court i.e. interpretation of the Court of Appeal, Abuja, on the judgment of the Kaduna Court of Appeal in CA/K/EP.GOV/60/2007 of 11/4/2008.
In the Court of Appeal Sokoto, the 1st appellant herein, was said to have filed an appeal in appeal No. CA/S/EP/GOV/10/09 against the decision of the Election Petition Tribunal, Sokoto in petition No. SS/EPT/GOV/1/08 between the same parties herein. There was a petition before the Election Tribunal Sokoto (which was set up later) by the petitioners/appellants against the 2nd respondent and others. After the Election Tribunal had considered all the issues raised, it declined jurisdiction to hear the petition on merit as it lacked jurisdiction and as it found that the appellants were guilty of abuse of judicial process. This, together with the issue of lack of jurisdiction, is what gave rise to the appeal now before the Court of Appeal, Sokoto Division, in Appeal No. CA/S/EP/GOV/10/09.
Yes, it is true that one appeal was filed by the appellants/respondents and is pending at the Court of Appeal, Abuja, Division, in Appeal No. CA/A/276/08. There is also another one filed by the same appellants/respondents and is pending at the Court of Appeal Sokoto Division, in Appeal No. CA/S/EP/GOV/10/09. As has been seen through the analysis rendered earlier in this ruling, the appeal at the Court of Appeal, Abuja Division on the decision of the Federal High Court, Abuja whereas the appeal at the Court of Appeal Sokoto Division, from the documents before this court, is on the decision of an Election Petition Tribunal, Sokoto. The two adjudicating bodies, that is, the Federal High Court and the Election Petition Tribunal are two independent bodies created of course, by the same constitution; empowered by the same constitution and other relevant statutes. They decide different matters and their jurisdictions differ. Ordinarily, a matter before one of these adjudicating bodies may not be presented for a decision before the other as they are polls apart and operate, rather, in parallel dimensions. Any decision of the Federal High Court, is appealable up to the Supreme Court. An appeal from an Election Tribunal relating to the election of gubernatorial candidates has its final bus-stop at the Court of Appeal. However, the bone of contention of the learned counsel for the 1st respondent/applicant and the learned Senior Advocates of Nigeria for the 2nd and 3rd respondents in this matter is not from where the appeal/process to the court or tribunal emanated but whether the law and practice in our adversarial system of adjudication allows for multiplicity of actions/appeals in either same court/tribunal or in different courts/tribunals between same parties pursuing same subject matter simultaneously. This is what authorities call multiplicity actions which usually gives rise to an abuse of court process. This court, in the case of ATTORNEY GENERAL OF ANAMBRA STATE V. UBA (2005) All FWLR (Part 277), defined the term abuse of court process in the following words:
“An abuse of Court process has been defined in CBN v. Ahmed.. per Ogundare, JSC… quoting Karibi-Whyte, JSC… as (the concept of abuse of judicial process) is imprecise. It involves circumstances and situation 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. 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 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 issue.”
Also, in the case Of Arubo v. Aiveleri (1993) 3 NWLR (Pt.280) 126 at 142 and 146 “abuse of court process” is defined simply to connote that the process of the court has not been used BONAFIDE and properly. It also connotes the employment of judicial process by a party in improper use to the irritation and annoyance of his opponent and efficient and effective administration of justice. The nature and characteristic of an abuse of court process were explicitly set out by this court in the case of Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 at page 188 – 189, where the court stated:
“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 administrative of justice. This will arise in initiating a multiplicity of actions on the same subject matter against the same opponent on the same issues.” Per Karibi-Whyte, JSC, at pp. 188 – 189
Looking at the antecedents of the matter on hand, this is what exactly the appellants/respondents had attempted to do. They went to the 1st Election Tribunal, they lost; they went to the Court of Appeal, Kaduna, they succeeded; they went the Federal High Court for interpretation of Kaduna Court of Appeal judgment, they lost; they now appealed simultaneously to the Abuja Division, Court of Appeal and Sokoto Division, Court of Appeal. These appeals are both pending in the respective. Divisions of the Court of Appeal. Both appeals, from the records, are between the same parties and on same subject matter. Haba! Can there be anything more irritating and more frustrating than this FORUM PROSTITUTION, to borrow of my learned brother, Adekeye, JSC Where this happens, the courts do not take it lightly as it is not a mere irregularity. It is a much more fundamental vice which is usually punished with dismissal. It is rooted in public policy as expressed in the Latin maxim “NEMO DEBET BIS VEXARI PRO UNAEAT EADEM CAUSA” i.e. no one shall be subjected to defend the same cause twice. This should not be allowed as it amounts to a flagrant abuse of court process. It is to be noted that in all the matters instituted by the appellants/respondents at the various courts or tribunals, the constant question, like the northern star, is on whether the 2nd respondent was not disqualified to contest election into the office of Governorships of Sokoto State. This, to me, is the recurrent decimal or RES in all the courts or tribunals which at one time or the other hosted the parties herein. The appeals now pending at the Court of Appeal Abuja and the Court of Appeal Sokoto, as pointed our earlier, are both on interpretation of the decision of the Court of Appeal Kaduna and or, on whether the 2nd respondent/applicant was qualified to stand the election that returned him as the Governor of Sokoto State. The appeal in the Abuja division of the Court of Appeal was filed in 2008. The appeal in the Sokoto Court of Appeal was filed on the 5th of March, 2009. It is trite law that where two actions of similar or same nature and between same parties and subject matter are being prosecuted concurrently before same court or different courts, it is the later in time that vacates. See: Doma v. Adamu (1999) 4 NWLR (Pt.589) 311; Beneplastic Industries v. Vasilyev (1999) 10 NWLR (Pt.624) 620; Abubakar v. Unipetrol Plc (2002) 8 NWLR (Pt.769) 242 at 253 – H-C; Ikena v. Edjerode (2001) 18 NWLR (Pt.745) 446 at 485 – 486.
In the matter on hand, it is clear that it is the appeal before the Sokoto Division of the Court of Appeal that is later in time. It is the one to vacate. Before I make an order in that respect, I still need to state the importance of a preservative order of court of law. It is akin to what the medical discipline calls preventive care. They say, “prevention is better than cure.”
Thus, where there is need to prevent the occurrence of a sickness or calamity such as AIDS or fire incidence in a neighbourhood house, the doctrine of necessity creeps in to help salvage the unaffected persons or houses in the same neighbourhood. People do not have to be invited to render all necessary and possible assistance to control the AIDS or the fire or its imminent expansion to other neighbouring structures. They gave spontaneous reactions in order to arrest the situation. Where the havoc is allowed to happen, then calamity has taken place and the RES is destroyed. The Supreme Court, by virtue of its being the apex court and in exercise of the general powers conferred upon it by the constitution, the Supreme Court Act and the Rules, has a duty to arrest an unnecessary drift by any person pursuing a litigation before any court or courts against which a complaint has been brought to the apex court. That, exactly, is what Ayoola, JCA (as he then was) said in the case of Globe Motors Holdings Ltd. v. Honda Motor Co. Ltd. (1998) 5 NWLR (Pt.550) 373 at 381 – 382:
“An instance of such arise is in the form of vexatious and oppressive actions. Another instance is when an action is instituted deliberately to circumvent the cause of justice and to bring the judicial process into ridicule and contempt. The constitution can never be seen to be protecting the use of judicial process to undermine respect for law and order and the integrity of the courts. Any action or course of conduct that is seen designed to introduce anarchy into the judicial system must be dealt with appropriately. In the instant case, the plaintiff while the order of the court still subsists rushed to the court below to seek orders which are in direct conflict with the subsisting order of this court not disclosing to that court the subsisting order of this court and the fact the defendant may have made preparations to clear the cars from the ports pursuant to the unconditional order of this court. If new facts have emerged since the making of our order the proper honorable path of action is for the plaintiffs to have sought a variation or discharge of our order or to appeal to the Supreme Court if dissatisfied with the order. The plaintiff’s conduct in this case prima-facie shows that they have manifested scant regard for the proper use of the judicial process and may have determined to abuse that process. In my view this court will be remiss in its duties if it does not bring it home to parties that while all sorts of unethical behaviour may be regarded as cleverness in the market place, such is not permissible in the legal system of our country. In the present case the conduct of the plaintiffs prima facie indicated, a determination of the plaintiffs to frustrate and abuse the judicial process. In the result I would grant the injunction as sought.”
I am in perfect agreement with the above dictum.
The attention of this court has been drawn to the issue of abuse of process of court in the matter on hand. See for instance; depositions hi paragraphs 7[i] and [ii] of the affidavit in support of the application of the 2nd respondent:
“7[i]. The main issue, in all the pending litigations/appeals relates to the, construction of the judgment of the Court of Appeal at Kaduna delivered on 11th April, 2008 as to whether or not applicant was/is excluded in the re-run election of 24th May, 2009.
7[ii]. Appellants are litigating the same issue in two different divisions of the Court of Appeal at the same time.”
The 3rd respondent/applicant deposed to the following facts:
“gg. That the appellants/respondents having elected to pursue CA/A/276/08 and CA/S/EP/GOV/10/09 paripassu on the same subject matter, same issue, same relief have triggered off gross abuse of the judicial process.
3[m] That the present application has bearing on the CA/S/EP/GOV/10/09 and should be decided be decided one way or the other as a matter of urgency
- That it will not serve the interest of justice for judgment to be delivered in CA/S/EP/GOV/10/09 when the Appeal No. CA/S/EP/GOV/10/09 is being challenged as constituting abuse before this Honourable Court”
The 2nd resporident/applicant deposed to the following facts:
“15. As at April, 2009, there were 2 appeals before Courts of Appeal Abuja and Sokoto both on the interpretation, enforcement or construction of the judgment of the Court of Appeal, Kaduna, on the NOMINATION OF ALIYU MAGATAKARDA WAMAKKO to contest the fresh election as ordered by the court (see Exhibits INEC 1 & 2).
- That if the Court of Appeal, Sokoto is not restrained, they will render nugatory:
b. The process before this Honourable Court and Court of Appeal Abuja and allow for full trial of all the issues on the merits.
- That, clearly, the appellants were on FORUM SHOPPING and that in aid of the appellants the court of appeal Sokoto are in a hurry to prevent the determination of the issue on its merits before Court of Appeal Abuja and this Hon. Court.
- that it will be in the interest of all the parties, interest of justice and interest of the people of Sokoto State who voted twice to elect a Governor to have this matter decided by this Hon. Court on its merits or by another impartial panel of the Court of Appeal.”
Section 22 of the Supreme Court Act, Cap. S15 Laws of the Federation of Nigeria, 2004, empowers this court to make any order necessary for determination the real question in controversy in an appeal. Furthermore, Order 2 Rule 12 (2), (3) and (5) of the Supreme Court Rules, (2002) as amended) have conferred on the Supreme Court general powers to give any judgment and make any order which ought to have been given or made and to make such further or other order as the case may require. The court shall have power to make order by way of injunctions or the appointment of a receiver manager and such other necessary orders for the protection of property or person pending the determination of an appeal to it even though no application for such an order was made in the court below. Subsection 5 of the order provides:
“12 The powers of the court under the foregoing provisions of this rule may be exercised notwithstanding that no notice of appeal has been given in respect of any particular party to the proceedings in that court; or that any ground for allowing the appeal or for affirming or varying the decision of that court is not specified in such a notice; and the court may make any order on such terms as the court thinks just to ensure the determination, on the merits of the real question in controversy between the parties.”.
In view of the enormous powers of this court as shown above, and in view of the fact that I already made a finding that there is an abuse of court process in the multiplicity of actions/appeals filed in different courts, especially in the court of Appeal Abuja Division in Appeal No.CA/A/276/08 and Court of Appeal, Sokoto Division in Appeal No. CA/S/EP/GOV/10/09, between same parties and same subject matter, being prosecuted simultaneously, it is necessary for this court to arrest the drift. To that effect, and in respect of the applications/reliefs sought by the 1st, 2nd and 3rd respondents/applicants to stay proceedings at the Court of Appeal, Abuja Division and or for an order of stay of proceeding or directing the Court of Appeal, Sokoto to suspend and or stay the delivery of judgment in CA/S/EP/GOV/10/09, all pending the determination of prayer 1 and the alternative prayer by the 3rd respondent/applicant or, as prayed by the 1st respondent, pending the completion of investigation is into serious allegations against the Hon. President of the Court of Appeal and the Hon. Justices hearing the appeal. It is the 2nd respondent who asks that the reliefs be granted pending the determination of this appeal.
Let me quickly observe that the grant of the reliefs asked by the 1st respondent “pending the completion” of investigations into serious allegations against-the President of the Court of Appeal and the Hon. Justices hearing the appeal is hinged on what appears to be an administrative order which emanated from an administrative body. It will appear difficult for me to grant orders that will pend the outcome of investigation mounted by an administrative body. Further, as I pointed our earlier, where an abuse of court process relates to multiplicity of actions/appeals being prosecuted in the same court or even in different courts simultaneously, the later in time will abate. I accordingly make the following orders:
i. Relief NO.2 from the application dated 11/2/2010 and filed on the same date by the 2nd respondent to wit:
“AN ORDER staying proceedings at the Court of Appeal, Abuja Judicial Division, in appeal No.
CA/A/276/08″ is hereby refused.
ii. Relief No. 3 from the 2nd respondent’s/application’s motion referred to in (i) above to wit:
AN ORDER staying proceedings at the Court of Appeal, Sokoto Judicial Division in Appeal No. CA/S/EP/GOV/10/09 until the final determination of the appeal by the apex court” and as prayed also by the 3rd respondent/applicant, is, hereby granted pending, the determination of this appeal.
This appeal, as I stated earlier is still pending as it has just been restored.
Thus, in view of what Order 2 Rule 30 of the Rules of this court provides:
“An appeal shall be deemed to have been brought when the Notice of Appeal has been filed in the Registry of the court below.”
The interlocutory appeal is pending. Furthermore, Order 8 Rule 11 of the Rules provides:
“11. After an appeal has been entered and until it has been finally disposed of, the Court shall be seized of the whole of the proceedings as between the parties thereto, and except as may be otherwise provided in the Order, every application therein shall be made to the court and not to the court below, but any application may be filed in the court below for transmission to the court.”
In the final result, I will summarise below the orders I have made on all the applications:
i. Application dated 18/3/2010 and filed on 19/3/2010 by the appellants/applicants:
Relief No.1 is for striking out the Notice of Withdrawal of the appellant’s appeal which is now taken care of by the order which set aside our judgment of 10/3/2010 restoring the’ appeal to the cause list of this court.
ii. Relief No.2 is for an order vacating our order made on 15/3/2010 which stays the delivery of judgment of Court of Appeal Sokoto in Appeal No. CA/S/EP/GOV/10/09 pending the determination of motions pending in this court. This order is hereby vacated.
iii. Motion on Notice dated 23/3/2010 and filed on same date by the 1st respondent.
The only relief in this motion is for an order directing the parties to file written briefs in respect of all the pending motions. This motion was withdrawn and struck out as this court decided to hear the parties orally.
iv. Motion on Noticed date 29/3/2010 and filed on same date by the 1st respondent for an order of this court preserving the RES and/or SUBJECT MATTER OF THIS APPEAL and for an order of this court directing the Court of Appeal Sokoto to suspend or stay the delivery of judgment in appeal No. CA/S/EP/GOV/10/09
v. The 3rd respondent’s relief No.3 in his motion on Notice dated 7/4/2010 and filed on 8/4/2010 which is on same subject matter with [iv] above and
vi. 2nd respondents prayer in his motion in Notice of 11/2/2010, same subject matter as in No. [iv] above, have all been granted as prayed pending the determination of the appeal in this court.
vii. 2nd respondent’s relief No. (i) in his motion dated and filed on 11/2/2010 for staying proceedings at the Court of Appeal Abuja has been refused. Whereas his relief for an order for accelerated hearing of this appeal has been granted, which resulted into the hearing of the appeal on 19th – 21st of April, 2010.
viii. Reliefs [i] and (ii) of the motion dated and filed on 11/2/2010 by the 2nd respondent for an order for departure etc are granted as prayed.
ix. Notice of opposition of withdrawal of appeal dated 26/2/2010 and filed on 1/3/2010 by the 1st respondent; motion on Notice dated and filed on 10/03/2010 by the 2nd respondent; motion on Notice dated 12/3/2010 and filed by the 2nd respondent and motion on Notice dated 7/4/2010 and filed on 8/4/2010 by the 3rd respondent, all asking for an order setting aside the Ex-parte Order made by this court dismissing the appeal on 10/3/2010 in chambers are granted and the appeal is restored to the general cause list of the court.
x. Motion on Notice dated 4/3/2010 and filed by the 3rd respondent for an order extending the time to cross-appeal seems abandoned and same is struck
These are my rulings on all the applications/processes filed by the respective parties. I make no order as to costs.