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Peoples Democratic Party & Anor V. Chief (Sir) Victor Umeh & Ors (2017) LLJR-SC

Peoples Democratic Party & Anor V. Chief (Sir) Victor Umeh & Ors (2017)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C.

The Applicants are praying this Court to strike out or dismiss Appeal No.SC. 204/2016 for being an abuse of Court process. The start off point in unraveling what led to this Application is the Petition they filed at the National Assembly Election Petition Tribunal, Anambra State wherein the Applicants challenged the declaration of 2nd Appellant herein as the duly elected Senator representing Anambra Central Senatorial District. The Tribunal dismissed their Petition on 9/10/2015, and they filed Appeal No. CA/E/EPT/28/2015 at the Enugu Division of the Court below, which held as follows in its Judgment delivered on 7/12/2015 –

“…Since by Paragraph 25(1) of Exhibit R1, it is the State Special Congress that should conduct the Primary for the purpose of nominating a candidate to contest election into the National Assembly. The 11th Respondent [i.e. 2nd Appellant] was therefore not the product of a valid primary and was therefore, not duly and legitimately nominated that has disqualified her from contesting the elections into the Anambra Central Senatorial District.”

The Court

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below ordered INEC to conduct a fresh election and INEC scheduled fresh elections for 5/3/2016 but excluded PDP from participating in the Court ordered election. At which point PDP commenced an action against it at the Federal High Court by way of Originating Summons filed on 10/2/2010. In the said Suit No. FHC/ABJ/CS/97/2016, PDP as the sole plaintiff averred as follows in Paragraph 12 of its Affidavit in support that –

“- The Plaintiff’s candidate at the election of 28/3/15, Hon. Ekwunife [2nd Appellant herein] has since left the party [PDP] as she has defected to the All Progressive Congress [APC] where she contested the primary election of the party for the selection of its candidate for the Court ordered fresh election aforesaid. That she lost the said election but remains a member of the said party [i.e. APC].”

The Federal High Court delivered its Judgment on 29/2/2016 wherein it granted the Orders as prayed including an Order of-

“Perpetual injunction restraining [INEC]… from conducting the said Court ordered fresh election for [the said] Senatorial Seat without the due participation of the Plaintiff [PDP]

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and its candidate.”

Meanwhile, the Appellants filed an Application dated 11/2/2016 at the Court below in which they prayed for the following orders-

“(1) An Order extending time within which the Applicants can apply to this Honourable Court to set aside its Judgment in Appeal No. CA/E/EPT/28/2015 delivered on 7/12/2015.

(2) An order setting aside the Judgment of this Hon Court in CA/E/EPT/28/2015 delivered on 7/12/2015, on the grounds to wit;

(i) lt lacks jurisdiction to adjudicate on the issue of sponsorship and/or nomination masquerading as qualification in the said matter which was the main fulcrum of the said decision.

(ii) The said decision was arrived at per incuriam.

(iii) The said order is a null order which ex debito justitae is liable to be set aside pro tan to.

(iv) Setting aside the said Order restores all Parties therein to the status quo ante belum before the purported filing of the Petition at the National Assembly Election Petition on 8/4/2015 and such Petition never existed, which was the basis of the Court Judgment on 7/12/2015.”

The Applicants, as 1st and 2nd Respondents, objected on the ground that the Application was statute-barred since

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it was flied outside 60 days delimited by Section 285(7) of the Constitution for the Court below to determine election matters. In its Ruling delivered on 3/3/2016 the Court below concluded as follows –

“This is an Appeal cloaked in the guise of a Motion. We cannot sit on appeal over our own Judgment. This Court is the final Court. Once a Court delivers Judgment subject to the “slip rule” principle, that Court becomes funtus officio. Even if we make a mistake on law or fact (though not conceded here) we cannot correct it. I must re-echo the words of Belgore, JSC in Obioha v. Ibero supra where His Lordship held that the law does not permit a Court double say on the same matter. There must be an end to litigation.

The Motion – – is incompetent and completely misconceived.”

This is the Ruling appealed against: subject of this Appeal they want dismissed or struck out. Their Grounds of Objection are

i. Simultaneously but prior to the instant Appeal, the 1st Appellant – – is pursuing an intrinsically divergent proceeding in Suit No. FHC/ABJ/CS/97/2016 PDP vs. INEC where [it] unequivocally swore under Oath that the 2nd Appellant herein “Hon.

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Ekwunife has since left the party i.e. (PDP) as she defected to the All Progressive Congress where she contested the primary election of the party for the selection for its candidate for the Court ordered fresh election in Anambra Central Senatorial District .

ii. The case of PDP in the said Suit No.. FHC/ABJ/SC/97/2016 is among other things that the present 2nd Appellant – – having since defected to the APC wherein she contested the APC primarily election “lost the said primary election but remains a member of the said party” i.e. the [APC]..

iii. By the final Judgment delivered by the Federal High Court on 29/2/2016 in the said Suit No. FHC/ABJ/CS/97/2016, the learned trial Court made the following finding of fact:

(a) Section 35 of the Electoral Act states that a person can cease to be a member of a political party either by death or if he withdraws. Hon. Uche Ekwunife in exercise of her constitutional right withdrew her membership of the plaintiff (i.e. PDP) and joined All Progresive Congress.

(b) This is precisely [its] case as stated in paragraph 12 of the affidavit in support of Originating Summons thus:

“Thus [its] candidate of

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28/3/2015 Hon Ekwunife has since left the party as she has defected to the [APC] where she contested the primary election of the party for selection of its candidate for the Court ordered fresh election aforesaid. That she lost the said primary but remains a member of the said party.

(c) On the strength of the above findings of facts, the learned trial Court granted all the reliefs sought by PDP in its Originating Summons, including an Order restraining INEC “from conducting the said Court ordered fresh election for the Senatorial seat of Anambra Central Senatorial District without the due participation of the plaintiff and its candidate.”

(d) The findings of facts of the learned trial Court based on PDP’s declaration under oath that Hon Uche Ekwunife is no longer a member of PDP having defeated to the APC is still subsisting and binding on PDP.

(iv) Suit No. FHC/ABJ/CS/97/2016 aforesaid is presently under appeal before this Hon. Court as appeal No. SC.619/2016. albeit on the challenge by the PDP that the Court of Appeal lacked the jurisdiction to grant the Applicants herein leave to appeal against the final judgment of the learned trial Court.

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There is no appeal nor challenge by any person, including the Appellants, regarding the findings of fact made by the learned trial Court that the 2nd Appellant has since left the PDP and defected to APC where she contested but lost the Party’s primary election though still remains a member of the [APC].

vi. The findings and determination made by the Federal High Court on 29/2/2016 in the suit instituted by the PDP were made long before the Appellants filed the present appeal on 9/3/2016.

vii. PDP’s pursuit of this appeal is tantamount to cherry picking and is aimed at an illegitimate use of the Court’s process to hedge the risk that the pending appeal against the Suit No. FHC/ABJ/CS/97/2016 aforesaid will yield an unfavourable outcome by disallowing PDP from participating in the Court ordered Anambra Central Senatorial Election.

viii. The instant Appeal is an act of forum shopping and amounts to a gross abuse of the judicial process.The Application is supported by a 24-paragraph Affidavit and attached thereto is a copy of the judgment of the Federal High Court in the Suit No. FHC/ABJ/CS/97/2016 as Exhibit APGA 1 . They filed a written

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address by Patrick I.N. IKWUETO, SAN, C.I Mbaeri, Esq; Isaiah Bozimo, Esq and C. D. Eze, Esq wherein they formulated two issues for determination namely

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(a) The PDP (1st Appellant herein) having obtained judgment in Suit No. FHC/ABJ/CS/97/2016 PDP v. INEC on 29/2/2016 that the 2nd appellant, Hon. Uche Ekwunife has ceased to be a member of the party (PDP) as she has joined APC where she contested but lost the primary election; is the institution of this Appeal on 9/3/2016 and seeking to have the same Hon. Uche Ekwunife declared/returned as the PDP Senatorial candidate for the same constituency not a gross abuse of process

(b) Is it objectionable for PDP to advance intrinsically divergent positions in multiple proceedings before this honourable Court as to its candidate for Anambra Central Senatorial District

The Appellants as Respondents opposed the application with a 28-Paragraph Counter-Affidavit. They filed a written address by Dr. Alex Izinyon, SAN, G.C.Igbokwe, Esq; B.k.Abu, Esq; C.S. Ekeocha, Esq, K.O. Omoruan, Esq, F.O. Izinyon; Mrs Hannatu Abdurrahman, L.O. Fagbemi, Esq, Alex Izinyon II, Esq, Josephine Majebi (Miss) and Charity

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Adah (Miss) wherein they also formulated two issues for determination:-

  1. Whether the [Applicants] who allege abuse of Court process have proved the existence of multiplicity of suit between the parties in this appeal on same subject matter, issues and reliefs in order to entitle them to the grant of their prayers.
  2. Whether this appeal predicated on distinct issues, subject matter and reliefs, not pending before any other Court between the parties can be said to amount to an abuse of process.

The 3rd – 12th respondents participated in the main appeal but they are “indifferent to this application”, and filed no processes.

This Application is therefore between the Applicants and Appellants in the main appeal, who will be called respondents.

The issues they both formulated amounts to splitting hairs and to cut to the chase, it is my view that the issue that calls for determination is simply whether this Appeal No. SC. 204/2016 constitutes an abuse of Court process in view of 1st appellant averment in Suit No. FHC/ABJ/CS/97/2016 that 2nd appellant is no longer a member of the party, and has decamped to APC.

To put the issue in proper perspective, the applicants

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were not parties in the said Suit No. FHC/ABJ/CS/97/2016 between PDP [1st Appellant] and INEC [3rd respondent] which is the subject of other appeals pending in this Court and Court below.

The applicants submitted that the absurdity of the position now canvassed by the appellants in this appeal is that whilst in Suit No. FHC/ABJ/CS/97/2016, determined on 29/2/2016, PDP is vehement in its assertion that the 2nd appellant has since left the party and defected to APC, in this appeal filed on 9/3/2016 the same PDP is pontificating that the 2nd appellant be restored and returned as its candidate, who won the said Anambra Central Senatorial District Election, and thus entitled to be put in office as the Senator representing that District in the 8th National Assembly. Furthermore, that the attitude of this Court is that a party must be consistent in making his case and should not be allowed to change his position as he moves through the steps of the Courts.Ajide v. Kelani (19085) 3 NWLR (pt. 12) 248, Akeredolu v. Mimiko (2014) 1 NWLR (pt. 1388) 402, Daniel v. INEC (2015) 9 NWLR (pt. 1463) 113, NJC v. Agumagu (2015) 10 NWLR (pt. 1467) 365 cited; that this Court as the

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apex Court is not only a Court of justice and equity but by its constitutional role, is also a policy Court. They added that –

“The question is, should this Court countenance proceedings such as this appeal, where a party manifestly adopts and advocates a patently inconsistent position, particularly where the inconsistent/divergent position is an adjudged position by a Court of competent jurisdiction based on representations made by the party to [it]. Your Lordships are respectively urged to refuse the invitation by the appellants aimed at using the process of this Court as a dice that can be played as how and when it suits [their] fancy.”

It is their contention, therefore, that the institution of this appeal by the appellants on 9/3/2016 is a gross abuse of process and they referred us to a number of authorities on the said subject.

The respondents on the other hand, argued that for there to be an abuse of Court process, there must be in existence a multiplicity of actions; parties in the action must be the same; and subject matter and issues in the actions must be the same – Society Bic S.A. & Ors. v. Charzin Ind. Ltd (2014) LPELR – SC.

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79/2005, UMEH V. IWU (2008) 8 NWLR (PT 1089) 225 at 243, Ogoejeofo v. Ogoejeofo (2006) 3 NWLR (Pt. 966) 205. Okafor v. A.G. Anambra State (1991) 6 NWLR (PT 200) 656 cited.

Furthermore, that a good look at the originating Summons in the said Suit No. FHC/ABJ/CS/97/2016 shows that the reliefs and issues in that suit relate to some other proposed election to be held on 5/3/2016, which is not the same as that wherein the 2nd appellant was returned before the return was nullified by the Court below in Appeal No: CA/E/EPT/28/2015; that the parties are different since the applicants were not parties in that suit, and reliefs sought and issues in that suit have no bearing with issues and reliefs sought in this appeal; that the petition and judgment of the Court below that gave rise to this appeal predate the said suit and appeals relied upon by the applicants, and the judgment of the Court below that is being challenged in this appeal was delivered on 7/12/2015; that the law is settled that in issues of this nature, it is the latter action that constitutes abuse of Court process – Ukachukwu v. PDP (2013) LPELR -SC, Dingyadi v. INEC (No. 2) (2011) 18 NWLR (pt. 724)

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369 cited; and that the present appeal does not constitute an abuse of the process of this Court and does not amount to forum shopping.

What is abuse of Court process The applicants did say that such instances vary, citingA.G. Anambra State V. UBA (2015) 15 NWLR (pt. 974) 44, where this Court explained that –

“The concept of abuse of judicial process is imprecise. It involves circumstances and situations 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 also recognized that the abuse of process may lie in both a proper and improper use of the judicial process in litigation. But the employment of judicial process is only regarded as an abuse when a party improperly uses the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administrative justice.”

They also cited CBN V. AHMED (2000) 11 NWLR (PT 724) 369; Arubo v. Aiyeleru (1993) 24 NSCC (Pt.1) 255 and Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 where Karibi -Whyte, JSC stated that the common denominator with the concept of abuse of Court process “is the improper use of the judicial process in litigation to interfere with the due administration of justice.”

Ironically, the respondents cited Umeh v. Iwu (supra), which must be familiar

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to the applicants because in that case, the 1st applicant, Chief Victor Umeh, was the 1st appellant and INEC and APGA, 2nd applicant, were 2nd and 4th respondents. The case is a better authority than any other case I can muster in resolving the issue at hand, and I will set it out in some detail.

In Umeh v. Iwu (supra), the 3rd and 4th respondents at the Federal High Court seeking declaratory/injunctive reliefs to stop them from interfering with the affairs of 4th respondent [APGA]. The appellants applied and were joined as the 3rd and 4th defendants to the said suit.

The 3rd and 4th respondents and 2 Ors instituted another suit against the Appellant and 12 Ors at the High Court of the Federal Capital Territory seeking inter alia a declaration that the defendants, including the appellants, were no longer members or national officers of APGA. The 1st and 2nd respondents were not parties but upon their application, they were joined as 15th & 16th respondents. But pursuant to a motion for discontinuance, their names were struck out. Following the discontinuance in that Court, the appellant filed a suit at the Federal High Court that was struck out for being an abuse of Court process as the

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subject matter was same as that pending at FCT High Court. The 3rd and 4th respondents then filed the suit at the Federal High Court that led to the decision cited by the respondents . The appellants were not parties to the suit but they applied and were joined as parties. As soon as they were joined, they filed an application to dismiss the suit as an abuse of Court process. The trial Court Judge, Adah, J. (as he then was) held thus –

“The bottom line of an abuse of Court process is a situation where a litigant will choose to use the legal process improperly to annoy and embarrass another through filing of multiple actions in one or different Courts against the same parties on the same parties on the same issues. In this case, the situation complained of is where the plaintiff and some of the parties – – have been having a legal battle before the FCT High Court over the leadership tussle in the 2nd plaintiff. – -The issues involved are similar but the parties are not the same. The 1st and 2nd defendant against who this action was originally directed, were not in the earlier case. The applicants were joined in this case because they applied to be joined

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as interested parties. Since they saw this suit before the Court and secured the leave – – to join, raising the issue of abuse to end the matter in limine is in itself odious to the principles of equality and justice. It is more abusive of the Courts process for a party to seek to join the suit and stand on the basis of his being joined in the suit to say that the suit is an abuse of the process of this Court. I do not believe from the facts of this case that there is any abuse of the process in this case. The 1st and 2nd defendant sued in this Court were not sued before the FCT High Court and it is worthy of note that this Court is the Court that has jurisdiction to entertain the suit against the 1st and 2nd defendants and not the FCT High Court. To shut down this case therefore will orchestrate injustice to the bonafide suit filed by the plaintiffs in this instant case. I hold therefore that this application is with all respect lacking in merit.”

At the Court below, Adekeye, JCA (as he then was) stated –

“I have looked through the facts and — circumstances of initiating the suits before the Federal Capital Territory High Court and the Federal High Court Abuja. It is apparent that the end result of the two

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suits are meant to have an impact on APGA but the 3rd respondent has grievance towards those he considered to be dissident factors in the party, which suit is before the Federal High Court – – The suit – – before the Federal High Court is against the chairman INEC and INEC, the 1st and 2nd respondents challenging their intermeddling with the affairs of the party by giving recognition to the appointment of Chief Victor C. Umeh as the Ag. National Chairman of APGA in the letter dated 28/6/2006, contrary to the Constitution of the Party, 1999 Constitution of the Federal Republic of Nigeria and the Federal Republic of Nigeria and the Electoral Law. I cannot identify any multiplicity of action here or abuse of the judicial process. Parties are permitted to air their grievances at the law Courts as when there is a right, there must be a remedy.”

On a further appeal to this Court, Chukwumah-Eneh JSC, held –

“Abuse of Court process, simply in practical sense denotes a situation where a party has instituted a multiplicity of suits against the same opponent in respect of the same subject matter and on the same issues. This matter of using Court process which is

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obviously lacking in bonafide leads to the irritation and annoyance of the other party and thus impeding due administration of justice – – Therefore, to sustain a charge of abuse of process there must co-exist inter-alia:

(1) A multiplicity of suits

(2) Between the same opponents

(3) On the same subject matter

(4) On the same issues

All these pre-conditions are mutually inclusive as they are conjunctive.”

He reproduced the decision of the trial Court and further held –

“I agree with this brilliant finding; it has captured at once the principles on abuse of process. It cannot be faulted. If I may recall, the Appellants – – have been joined as 15th & 16th defendants to Suit No. FCT/HC/CS/278/2005. The joinder, however, has to be revoked when the plaintiff discontinued against them i.e. 15th & 16th defendants. Interestingly enough, the Appellants have taken the issue of multiplicity of suits as an abuse of process vis-a-vis the instant suit when the appellants are no longer parties to one of the suits

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i.e. FCT/HC/CV/278/2005. They cannot run away from that fact to hinge their entire case on the finding that as the two suits have impact on the leadership tussle of the 4th respondent (APGA) the instant suit without more constitutes an abuse of process on these peculiar facts. – – – On the question of the same subject matter – – the instant Suit No. FCT/ABJ/CS/278/2005 has been instituted to challenge the 1st and 2nd defendants/Respondents on their power to attempt to confer recognition of National Chairman or acting National Chairman of the 2nd plaintiff/4th Respondent to any other person but the 1st plaintiff/3rd respondent contrary to the party’s constitution and an Order of injunction. The suit No. FCT/HC/CV/278/2005 on the expulsion of the 1st to 11th defendants are no longer members of the party. Again, the subject matter in either of the two suits is not the same. It is difficult to see how the charge of abuse of Court process can be made to stand on these facts, it cannot. On whether the two suits have raised the same issues, it goes without much debating of the point that this is not so. Based on the above careful appraisal of the two suits, the

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contending issues in both suits are not the same. There can be no doubt – – that the conditions I have set out above to guide my discussion on abuse of process in this matter are non-existent in the two suits and therefore this issue has to be resolved against the appellant and in favour of the respondents. I have not found any abuse of Court process on the facts of the aforesaid two suits even though in the end they may have their roots in the tussle for leadership of the 4th respondent (i.e. APGA).”

In his judgment, Onnoghen, JSC (as then was) observed –

“From the reliefs claimed in the two suits, it is very clear that though they relate to the leadership of the 4th respondent, they are definitely not the same – – It is therefore, under circumstance not correct to say that the two suits are pending before Courts of concurrent jurisdiction and therefore subject to the principles of abuse of Court process. It is very clear that whereas in Suit No. FCT/HC/CV/278/2005, the 3rd respondent seeks to ventilate his grievance against those considered to be dissident groups within the party, in the instant case the 3rd and 4th respondents are

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proceeding against the 1st, 3rd and 4th Respondent, who are the chairman of INEC and INEC respectively challenging their alleged intermeddling or interference with the internal affairs of the 4th respondent by giving recognition to the appointment of the 1st Appellant as Chairman of the 4th Respondent contrary to the constitutional provision of the 4th respondent, the 1999 Constitution and the 2002 Electoral Act. Clearly, there is no abuse of Court process known to law, having regards to the facts of this case.”

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What can be that clearer In that case involving the applicants, this Court did not find any abuse of Court process although the suits filed had their roots in the tussle for leadership of APGA.

They are back in this Court, but this time, the tussle is over the senatorial seat of the Anambra Central Senatorial District. Let us dissect the circumstances that triggered this application bearing in mind that the law does not say that once a party flies another suit before another Court on the same subject matter, there is abuse of Court process. A subject matter may give rise to different rights. In other words, different suits can emanate from same subject matter but with different rights and reliefs.

In this case, this

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appeal and the said suit are offshoots of the same struggle over a Senatorial seat. At the base of both is the said judgment of the Court below delivered on 7/12/2015, wherein it ordered fresh elections into the said Senatorial seat; that is when and where they took different journeys of their own.

INEC excluded PDP from participating in the fresh election fixed for 5/3/2016 and PDP challenged its exclusion by filing the Suit No. FHC/ABJ/CS/97/2016 on 10/2/2016, wherein it said its candidate at the election that culminated in the judgment of the Court below delivered on 7/12/2015 was no longer its member.

At this point, the parties were no longer the same page. The said suit had a different cause of action and the applicants were not parties to the suit as this issue did not concern them. However, PDP and the same candidate it said was no longer its member filed an application at the Court below on 11/2/2016, asking it to set aside its earlier decision nullifying the election. The Federal High Court delivered ruling on 3/3/2016 wherein it dismissed the application to set aside its decision.

PDP and the same candidate of the election of 28/3/2015, appealed against the decision dismissing the said

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application, which is this appeal that the applicants label an abuse of Court process because of what PDP said in another suit altogether.

I must say the respondents are right; this appeal and that suit may have arisen from the same judgment but the nullified election and the Court ordered election are two different things.

The Court below nullified the election of 28/3/2015 and the appellants applied to have that decision set aside but the Court dismissed the said Application and they appealed to this Court. An appeal is an invitation to a higher Court to review a decision of a lower Court whether on the proper consideration of facts before it, and the law, that Court arrived at a correct decision – See Oredoyin v. Arowolo (1989) 4 NWLR (pt. 114) 172 @ 211.

The decision the appellants are asking this Court to review in this appeal is the decision of the Court below dismissing their application to set aside the judgment nullifying that election.

In the same judgment, the Court below also ordered INEC “to conduct a fresh election into the Anambra Central Senatorial District, within 90 days”. But INEC excluded PDP from the said fresh election and it filed the said suit challenging INEC for that. The

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decision of the Federal High Court is also subject to appeal and the Applicants say that there are pending appeals against that decision in this Court and Court below. The respondents made an issue of it by arguing that the applicants failed to show the relevance of those appeals to their objection as they did not produce Notices of appeal to enable this Court see the issues and reliefs sought in those Appeal and that their conduct is a deliberate act on their part to mislead this Court. In my view, this spat over appeals are more or less running on parallel lines. The nullified election, which is the subject of this appeal is on a different tangent from the fresh election, the subject of that suit.

The Applicants pointed out that as a party will not be allowed to change his position as he moves through steps of the Court and cited some authorities, which the respondents argued are “inapplicable and unhelpful” to the applicants. I agree entirely. For instance, in Ajide v. Kelani (supra) cited by the applicants, the appellant admitted in his pleading that the disputed property was originally partnership property but he changed his position in the witness box to say it had never been partnership property and has always been his personal property. But the trial Court surprisingly dismissed the plaintiff’s case, holding as follows –

“In short, it can be said that the Plaintiff’s case has been so badly presented that nothing can be made of it. It is no consolation that the 1st Defendant (the said appellant) is in my view, a most unreliable person whose evidence ought not to be believed.

The Court below reversed the judgment of the trial Court and

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the appellant appealed to this Court. In dismissing the appeal, this Court per Oputa, JSC, decried the situation as follows –

“From the pleadings of the parties, from the sudden change of front of the appellant in the witness box, from the finding of the trial Court that the appellant was “a most unreliable person.” I wonder how any Court of law, equity and justice can decree in favour of such an appellant as now appeals to this Court.”

Oputa, JSC, further elaborated as follows in the judgment –

“A party should be consistent in stating his case and consistent in proving it. He will not be allowed to take one stance in his pleadings; then turn summersault during the trial; then assume nonchalant attitude in the Court of Appeal; only to revert to his case as pleaded in the Supreme Court. Justice is much more than a game of hide and seeks. It is an attempt, our human imperfections notwithstanding, to discover the truth. Justice will never decree anything in favour of so slippery a customer as the – – appellant.”

If the point I am trying to put across is not clear; let me explain. The inconsistent positions in the cases, cited by the

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applicants, moved through steps of the Courts, in one and the same action.

In the case, this Appeal No. SC.204/2016 has to do with the election of 28/3/2015; it started at the trial tribunal and went on appeal to the Court below before it finally got to this Court. Suit No. FHC/ABJ/CS/97/2016 has to do with fresh election ordered by the Court below; it is a Federal High Court matter. The point of divergence came after the order for fresh election and INEC issued a notice excluding PDP from participating in the fresh election. At this point, the election Petition was dead; it was determined when the Court below nullified the election.

The suit filed at the Federal High Court was a fresh action aimed at getting INEC to include PDP in the said fresh election. The applicants were not parties; and issues and reliefs sought in that suit had nothing to do with them or their election petition. It was a fight between PDP and INEC to have PDP included in the fresh election ordered by the Court below and nothing more: the notion that there is an abuse of Court process is erroneous.

The bottom line is that the application lacks merit and it is therefore, dismissed. I make no order as to costs.


SC.204/2016(R)

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