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Home » Nigerian Cases » Supreme Court » Peoples Democratic Party V. Senator Ali Modu Sherrif & Ors (2017) LLJR-SC

Peoples Democratic Party V. Senator Ali Modu Sherrif & Ors (2017) LLJR-SC

Peoples Democratic Party V. Senator Ali Modu Sherrif & Ors (2017)

LAWGLOBAL HUB Lead Judgment Report

OLABODE RHODES-VIVOUR, J.S.C.

This is an appeal from the majority decision of the Court of Appeal, Port Harcourt Division coram: Gumel, JCA, Sanga, JCA. Orji-Abadua, JCA (dissenting) in which the decision of a Port Harcourt, Federal High Court, was upset on appeal.

The appellant, who was the plaintiff in the trial Court filed an Originating Summons on 24 May, 2016 against the respondents, seeking the determination of the following questions.

  1. Whether the National Convention of the plaintiff is the Supreme and controlling authority of the plaintiff and its principal representative, policy making and administrative body.
  2. Whether decisions of the National Convention of the plaintiff made pursuant to its authority expressly provided for in the Constitution of the plaintiff is binding on all members of the plaintiff.
  3. Whether decisions of the National Convention of the plaintiff can be countermanded by member/members or a National Officer/National Officers or organ/organs of the plaintiff.
  4. Whether the 1st and 2nd Defendants or any and/or all of the National Officers,

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the members of the National Officers, the members of the National Executive Committee and member of the National Working Committee of the plaintiff who were removed from office by the National Convention of the plaintiff held on 21 March, 2016 in Port Harcourt Rivers State can hold or continue to hold himself/themselves out as the Chairman, Secretary or National Officer or Members of the National Executive Committee or National Working Committee of the plaintiff.

  1. Whether the 3rd defendant can, in its role as a monitoring agency of the activities of the plaintiff, interfere with or negate a decision of the plaintiff’s National Convention reached in accordance with the plaintiffs Constitution.
  2. Whether it is lawful for the 4th and 5th defendants to deploy personnel to the 1st and 2nd defendants for the purpose of preventing the 1st and 2nd defendants from vacating the respective office from which they were removed by the National Convention of the plaintiff in accordance with the plaintiffs Constitution.

The appellant sought the following reliefs:

  1. A declaration that the National Convention of the plaintiff is the

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Supreme and controlling authority of the plaintiff and its principal representative policy making and administering body.

  1. A declaration that decisions of the National Convention of the plaintiff made pursuant to its authority expressly provided for in the Constitution of the plaintiff is binding on all members of the plaintiff, the 1st and 2nd defendants inclusive.
  2. A declaration that decisions of the National Convention of the plaintiff CANNOT be countermanded by a member/members or a National Officer/National Officers or an organ/organs of the plaintiff.
  3. A declaration that the 1st and 2nd defendants or any and/or all of the National Officers, the members of the National Executive Committee and MEMBERS OF THE National Working Committee of the plaintiff who were removed from office by the National Convention of the plaintiff held on 21st May, 2016 in Port Harcourt, Rivers State CANNOT hold or continue to hold themselves out either individually or collectively as the Chairman, Secretary or National Officer or Member of the National Executive Committee or National Working Committee of the plaintiff.
  4. An Order or perpetual injunction

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restraining 1st and 2nd defendants or any and/or all of the National Officer, the Members of both the National Executive Committee and Members of the National Working Committee of the plaintiff who were removed from office by the National Convention of the plaintiff held on 21st May 2015 in Port Harcourt Rivers State from holding or continuing to hold themselves out either individually or collectively as the Chairman, Secretary or National Officer or member of the National Executive Committee or National Working Committee of the plaintiff.

  1. A declaration that the 3rd defendant CANNOT, in its role as a monitoring agency of the activities of the plaintiff, interfere with or negate a decision of the plaintiffs National Convention reached, in accordance with the plaintiff’s Constitution.
  2. An Order restraining the 3rd defendant from according or continuing to accord any recognition to the 1st and 2nd defendants or any and/or all of the National Officers, the members of both the National Executive Committee and members of the National Working Committee of the plaintiff who were removed from office by the National Convention of the plaintiff held on

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21st May, 2016 in Port Harcourt, Rivers State as officers or organs of the plaintiff.

  1. An Order directing the 3rd defendant to recognize the National Caretaker Committee appointed by the National Convention of the plaintiff held in Port Harcourt on 21st May, 2016 as the Executive authority of the plaintiff ALL matters pertaining to the plaintiff including (a) the conduct of Primary Elections for Political Offices, and (b) the submission of the plaintiff’s list of candidates for any Elections to be conducted by the 3rd defendant.
  2. A mandatory injunction restraining the 1st and 2nd defendants, their allies, representatives and persons action for and in their behalves from any action and or conduct whatsoever and howsoever, which is contrary to the decisions reached at the National Convention of the plaintiff held at Port Harcourt on 21st May, 2016.
  3. A declaration that it is unlawful for the 4th and 5th defendants to deploy security personnel to the 1st and 2nd defendants for the purpose of preventing the 1st and 2nd defendants or any and/or all of the National Officers, the members of the National Working Committee of the plaintiff

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from vacating the respective office from which they were removed by the National Convention of the plaintiff in accordance with the plaintiff’s Constitution.

  1. An Order restraining the 4th and 5th defendants from deploying security personnel to the 1st and 2nd defendants for the purpose of preventing the 1st and 2nd defendants or any and/or all of the NATIONAL officers, the members of both the National Executive Committee and Members of the National Working Committee of the plaintiff from vacating the respective offices from which they were removed by the National Convention of the plaintiff in accordance with the plaintiff’s Constitution.

The Originating Summons was supported by a 38 paragraph affidavit and several annexures. There was also a 7 paragraph further affidavit with annexures. For the 1st and 2nd respondents a preliminary objection was filed on 26th May, 2016. It was for an order to dismiss the Originating Summons for being an abuse of process.

In opposition to the Originating Summons a 15 paragraph counter-affidavit with annexures was filed on behalf of the 1st and 2nd respondents. No processes were filed on behalf of the

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3rd, 4th, and 5th respondents.

In a well considered judgment delivered on 4th July 2016, Liman J, had this to say on whether the suit (i.e. FHC/PH/CS/524/2016) from which this appeal emanates is an abuse of process.

“In the final analysis, I am of the firm view that the defendants/applicants has failed to establish the plaintiff is guilty of abuse of process of the Court, and in the circumstances the Preliminary Objection is accordingly overruled.”

On whether the National Convention which was held on 21st May 2016 was valid. His lordship said:

“…… In view of the above analysis I hereby found as a fact that the convention was properly convened and the National Deputy Chairman had validly presided over the convention.”

On whether the Caretaker Committee was properly appointed. His lordship had this to say:

“……… Applying the relevant provisions of the P.D.P. Constitution to the events that took place and the resolutions adopted at the National Convention on 21st May, 2016, it is obvious that the dissolution of both National Executive Committee and the National Working Committee was within the powers of the National

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Convention under Article 5(b) and the Appointment of the Caretakers Committee was also within the ambit of Article 5 (e).”

Concluding his lordship, Liman J said:

“In the light of the above analysis I shall come to the final conclusion resolving all the questions for determination set out in the Originating Summons in the affirmative, and consequently, to grant the reliefs sought, and I so grant.”

The respondents’ particularly the 1st and 2nd respondents were not satisfied with the judgment. They lodged an appeal. It was heard by the Court of Appeal, Port Harcourt, Division, Gumel, JCA presided. On the panel were Orji-Abadua, JCA and Sanga, JCA. There was a split decision, Gumel JCA and Sanga, JCA were the majority, Orji-Abadua, JCA wrote the dissenting judgment.

On whether suit No. FHC/PH/CS/524/2016 is an abuse of process, the majority view was that it was an abuse of process. Their lordships said:

“…. In consequence of the foregoing, that Preliminary Objection against the Originating Summons in this appeal is hereby upheld. Suit No.FHC/PH/CS/524/2016 is an abuse of Court process and is accordingly struck out…..”

On

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whether the National Convention which was held on 21st May 2016 was valid, the majority decision per Sanga, JCA said:

“……. It is my holding on this issue that the purported National Convention held on 21st May 2016 was in contravention of a lawful Court order and its own Constitution, therefore all the decisions taken thereof are hereby set aside by me…”

And, on whether the Caretaker Committee was properly appointed the Majority judgment per Sanga, JCA said:

“….. Because of the failure of the 1st respondent to obey a legitimate Court Order and its own Constitution, it follows naturally that the action it took on 21st May 2016 during its alleged National Convention of dissolving all its National Officers and appointing in their place a Caretaker Committee is a nullity ab initio and I so hold…”

This appeal is against that judgment. Learned counsel for the appellant, Chief Wole Olanipekun, SAN filed the appellant’s brief on 6th March 2017 deemed duly filed and served on 22 May, 2017.

Learned counsel for the 1st and 2nd respondents, Chief Akinlolu Olujinmi SAN filed the 1st and 2nd respondents brief on 21st April, 2017,

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deemed duly filed and served on 4 May. 2017. No briefs were filed for the 3rd, 4th and 5th respondents.

Learned counsel for the appellant, filed an appellant’s reply brief on 8th April, 2017 deemed duly filed and served on 22 May 2017.

Some other processes were filed. I shall refer to them when I consider the Preliminary objection.

Learned counsel for the appellant formulated seven issues for determination from his twenty-four grounds of appeal. They are:

  1. Having regard to the subject matter before the trial Court which culminated in the appeal before the lower Court, whether the lower Court did not act without jurisdiction and in breach of the appellant’s right to fair hearing by setting aside all the decisions taken at the appellant’s convention of 21 May, 2016 and also decreeing an order for the maintenance of status quo ante bellum.
  2. Whether the lower Court did not fall into serious error when it relied on non-existent orders in reaching its decisions to set aside the judgment of the trial Court.
  3. Having regards to the fact that the lower Court rightly found that the appellant’s before it (now 1st and

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2nd respondent’s) are guilty of serial abuse, and that the 1st appellant (now 1st respondent) not only displayed infantile desperation to cling to office at all cost, but also embarked on foolhardy and reckless misadventure of going round Courts to obtain all sorts of orders which were deprecated, whether the lower Court did not fall into serious error by still giving judgment in favour of the said appellants.

  1. Considering the claim and parties in suit No.FHC/PH/CS/524/2016, whether the lower Court was not wrong in its decision that the said suit was an abuse of Court process.
  2. Having regard to the settled position of the law relating to the principles and effect of waiver and estoppel, whether the lower Court did not fall into serious error by giving judgment in favour of the 1st and 2nd respondents.
  3. Considering the clear and unambiguous provisions of the appellant’s Constitution, whether the lower Court rightly interpreted and applied the various provisions of the said Constitution in arriving at its decision to set aside the trial Court’s judgment.
  4. Was the lower Court justified in finding that the trial Court resolved

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substantive issues at the interlocutory stage.

On the other side of the fence, learned counsel for the 1st and 2nd respondents also formulated seven issues for determination. They are:

  1. Whether the lower Court was not right in striking out suit No. FHC/PH/CS/524/2016 in this appeal, as an abuse of Court process, having regard to the materials in the records.
  2. Whether the adverse comments on or rebuke of the 1st and 2nd respondents by the lower Court would have provided a valid ground for the lower Court to deny the 1st and 2nd respondents favourable judgment on their appeal which was found meritorious.
  3. Whether the lower Court failed to give proper consideration to the provisions of the Constitution of the appellant relied upon by the 1st and 2nd respondents in their appeal to the lower Court.
  4. Having regard to the materials in the records, whether the lower Court was not right in setting aside all the decisions taken at the so-called National Convention of the appellant held on 21st May, 2016 and in granting the relief granted.
  5. Whether there were sufficient materials before the lower Court to justify the setting

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aside of the judgment of the trial Court.

  1. Whether the doctrine of waiver and estoppel can be pleaded against a party to a suit in justification of breach of Court order by the other party.
  2. Whether the views expressed by the lower Court concerning how the trial Court dealt with the preliminary objection of the 1st and 2nd respondents, which views did not form part of the ratio decidendi, can attract the setting aside of the judgment of the lower Court.

After a diligent examination of the issues formulated by both sides in an appeal, it is the duty of an Appeal Court, and especially the top Court to adopt or frame issue that would be decisive in determining the real grievance in the appeal and not waste time on peripheral issues.

The following two issues addresses the real grievance in this appeal, more-so as the material issues formulated by both sides are subsumed in them.

The following issues shall determine this appeal.

  1. Whether suit No FHC/PH/CS/524/2016 is an abuse of process.
  2. Whether the National Convention of the PDP which was held on 21st May 2016 in Port Harcourt, River State was

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illegal.

Before the above issues are examined, the Preliminary objection filed by learned counsel for the 1st and 2nd respondents, Chief A. Olujinmi, SAN must be addressed. If it succeeds the hearing of the appeal comes to an end.

Indeed in Adunola & 2 Ors v. Olawiye (2014) 12 NWLR (Pt. 1421) p.252.

I explained when a Preliminary Objection should be filed and how decisive it could be if sustained. I said:

“A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. The purpose of a preliminary objection is to convince the Court that the appeal is fundamentally defective in which case the hearing of the appeal comes to an end if found to be correct. Where a preliminary objection would not be the appropriate process to object or show to the Court defects in processes before it, a motion on notice filed complaining about a few grounds, or defects would suffice…. If sustained, a preliminary objection terminates the hearing of an appeal.”

Learned counsel for the 1st and 2nd respondents, Chief

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Olujinmi SAN argued a Preliminary Objection in his brief.At the hearing of this appeal on 22nd May, 2017 Mr. Lateef Fagbemi SAN informed this Court that he was appearing for the appellant in respect of his motion filed on 21st March 2017.

I must explain. The grounds of the 1st and 2nd respondents’ preliminary objection are:

  1. The filing of the appeal was not authorized by the appropriate authorities of the Peoples Democratic Party.
  2. The appeal has been withdrawn by a notice filed on 15th March, 2017 and signed by the National Chairman, National Secretary and Ag. National Legal Adviser of the Peoples Democratic Party.
  3. All the grounds of appeal raise issues of fact or mixed fact and law and as required by the provisions of Sections 233 (3) of the Constitution, the appellant ought to have obtained the leave of either the Court of Appeal or the Supreme Court before filing its appeal. Therefore, not having obtained such leave, the appeal is incompetent and the same should be struck out.
  4. The incompetent grounds vitiate the issues under which they are argued.
  5. Appellant’s issue (iii) is unrelated to ground 3 of

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the appeal.

  1. Contrary to Order 8 Rule 1(3), grounds 5, 10, 11, 17, 18 and 19 are not concise and ought to be struck out.
See also  Dotun Fatilewa Vs The State (2008) LLJR-SC

According to Mr. Lateef Fagbemi, SAN he appears for the appellant, for the Motion filed on 21st March 2017. In that Motion on Notice he seeks an order of this Court striking out this appeal for the same reason as in ground 1 of the 1st and 2nd respondents preliminary objection. That Senator Ali Modu Sheriff and Prof. Wale Oladipo never briefed Chief Wole Olanipekun, SAN to file this appeal on behalf of the P.D.P.

I earlier on alluded to the fact that a Preliminary Objection, if properly filed, its success terminates the hearing of the appeal. If ground 1 of the Preliminary Objection succeeds the appeal would no longer be heard.

On 22nd May 2017 at the hearing of this appeal, this Court granted the appellant leave to appeal on grounds of mixed law and fact. Grounds 3 and 4 of the Preliminary objection are in the circumstances no longer tenable. Grounds 1, 2, 5 and 6 would now be addressed.

GROUND 1

Learned counsel for the 1st and 2nd respondents observed that the appeal was never authorized by the

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alter ego of the appellant, vide the National Working Committee/National Executive Committee consisting of the 1st and 2nd Respondents. Relying on Quo vadis Hotels & Restaurants Ltd. v. Commissioner of Lands Midwestern State & Ors (1973) 6 SC p.50.

He submitted that the appeal has not come properly before the Court and the same should be struck out.

Mr. Lateef Fabgemi, SAN moving his Motion filed on 21st March 2017 to which is a 14 paragraph affidavit and a further reply affidavit of 18 paragraphs.

He submitted that the P.D.P. is a Corporate Body, contending that since the judgment of the Court of Appeal is still in force, no one can question the Party’s alter ego who no longer wants to appeal.

Mr. Wole Olanipekun, SAN filed a written address and a counter-affidavit. He also responded in his reply brief.

Learned counsel observed that the principle of alter ego is inapplicable to political parties.

He further observed that there is no law that provides that it is the National Chairman and National Secretary of a Political party that can authorize the filing of an action, more so as the Political Party’s

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Supreme body is its National Convention. Relying on Enterprises v. A-G, Kaduna (1987) 2 NWLR (Pt. 57) p.389.

He submitted that the right to appeal is an offshoot of a party’s right to fair hearing. He urged the Court to refuse ground 1.

Section 233 (1) of the Constitution provides that the Supreme Court shall, to the exclusion of any other Court hear and determine appeals from the Court of Appeal.

Indeed in Enterprises v. A-G Kaduna (supra) this Court, per Oputa, JSC, on the right of appeal said:

“It is the glory, happiness and pride of our various Constitutions, that to prevent any injustice no man is to be concluded by the first judgment, but that if he apprehends himself to be aggrieved he had another Court to which he can resort for relief. For this purpose the law furnishes him the right of appeal as of right.”

A party dissatisfied with a judgment given against him has a right of appeal to the Court of Appeal, and if still not satisfied with the judgment of the Court of Appeal, a final appeal to the top Court. Any attempt to stop or deprive an aggrieved party his right of appeal would be unconstitutional in that he

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would be denied his right of appeal and fair hearing contrary to Sections 36 and 233 (1) of the Constitution.

The National Working Committee/National Executive Committee of the P.D.P. are the highest decision making bodies of the Party.

This case is all about who in the party controls them. There are two distinct factions fighting for control. They are the 1st and 2nd respondents on one side, and the Caretaker Committee on the other side. The High Court held that the Caretaker Committee was in full control of the Party, while the majority judgment of the Court of Appeal reversed that finding and held to the contrary, that the 1st and 2nd respondents were in full control of the Party. Now, an appeal is a rehearing that comes to an end in the Supreme Court. It is the duty of this Court to decide which of the two factions controls the Party. Since the appellant as plaintiff’s brought this action in the name of the P.D.P., they, as the Caretaker Committee are perfectly in order to file this appeal in the name of the P.D.P. When different groups in a party claim to be in control of the party, anyone of them can sue in the name of the

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Party.

A party’s right to appeal can be refused if it is brought contrary to extant provisions of the Constitution. This appeal was filed in accordance with clear provisions of the Constitution in the name of P.D.P.

Ground 1 of the Preliminary objection is accordingly refused.

GROUND 2

Learned counsel for the 1st and 2nd respondents observed that the appeal was withdrawn by the alter ego of the appellant to wit: the National Chairman, the National Secretary, and Ag. National Legal Adviser of the Party. Reliance was placed on paragraph 17 of the affidavit in support of the Motion of the 1st and 2nd respondents filed on 16th March, 2017 seeking to strike out this appeal on the ground of incompetence. He submitted that since the appeal has been withdrawn under Order 8 Rule 6 (1) of the Supreme Court Rules it is deemed dismissed. Reference was made to Edozien v. Edozien (1993) 1 NWLR (Pt. 272) p.678.

Concluding, he further submitted that the appeal has not come before the Court by due process of law. Reliance was placed on Madukolu v. Nkemdilim (1962) NLR p.581.

Replicando, learned counsel for the appellant observed

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that the 1st and 2nd respondent cannot withdraw what they have not filed. Reliance was placed on Order 1 Rule 2, and Order 8 Rule 6(1) of the Supreme Court Rules. He urged the Court to dismiss the 1st and 2nd respondents said objection which has been exposed to be frivolous.

Order 1 Rule 2 of the Supreme Court Rules defines appellant as:

“A Party appealing from a decision or applying for leave in behalf thereof and includes the legal practitioner retained or assigned to represent him in the proceedings before the Court.”

While Order 8 Rule 6(1) of the Supreme Court Rules state that:

“An appellant may at any time before appeal is the called on for hearing serve on the parties to the appeal and file with the Registrar a notice to the effect that he does not intend further to prosecute the appeal.”

The clear interpretation of the above is that an appellant is the party that can appeal from a decision, and appellant also includes the legal practitioners representing the appellant. It is only an appellant that can withdraw an appeal, and he does this before the hearing of the appeal by filing a notice of Motion, served on the

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respondent seeking order of withdrawal of appeal on the ground that he, the appellant no longer desires to prosecute the appeal. Such an application is served on the adverse party and filed with the Registrar of Court.

On 17th February 2017 the 1st and 2nd respondents obtained a favourable judgment from the Court of Appeal. That judgment reversed the judgment of the High Court and put them in control of the P.D.P. The appellant was not satisfied with the judgment of the Court of Appeal, and so decided to appeal. The appellant has a Constitutional right to appeal. The 1st and 2nd respondents are to defend the judgment of the Court of Appeal and not withdraw the appeal that was not filed by them.

Order 8 Rule 6(1) of the Supreme Court Rules enables an appellant to withdraw his appeal, and since the respondents are not appellants they cannot withdraw this appeal. This is without doubt a vexation and worthless ground of objection. It is refused.

GROUNDS 5 and 6 would be taken together.

They contend that:

(a) Appellant’s issue 3 is unrelated to ground 3.

(b) That contrary to Order 8 Rule 1(3), grounds 5, 10, 11, 17, 18 and 19

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are not concise and ought to be struck out.

Learned counsel for the 1st and 2nd respondents observed that issue 3 is not related to ground 3. He further observed that grounds 5, 10, 11, 17, 18 and 19 of the appeal are not concise contrary to Order 8 Rule 2 (3) of the Supreme Court Rules. He urged the Court to strike them out.

Responding learned counsel for the appellant observed that the test of conciseness of grounds of appeal is whether same is comprehensible and not necessarily the length of the ground of appeal.

Reliance was placed on Aderounmu v. Olowu (2002) 2 SCNJ p.180. He urged the Court to reject the 1st and 2nd respondents’ preliminary objection and affirm the validity and competence of this appeal.

Order 8 Rule 2(3) of the Supreme Court Rules state that:

“The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.”

When a party is not satisfied with a decision he files a Notice of Appeal. The Notice of Appeal contains grounds of

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appeal. The grounds of appeal represent the appellant’s complaint against the decision which he wants the Court to correct or remedy. A ground of appeal is against the decision and it must challenge the ratio decidendi and not the obiter dicta.

On no account must there be a disconnect between the grounds of appeal and the controversy between the parties. This also applies to the issues which must arise from the ground since appeals are decided on issues for determination which are formulated from the grounds of appeal. See:

Abubakar v. B.O. & A.P. Ltd (2007) 18 NWLR (Pt. 1066) p.319

Adesanya v. President of Nigeria (1981) 12 NSCC p.247

On whether issue 3 is related to ground 3, it is long settled that a ground and the particulars should be read together for a proper understanding of the appellant’s complaint before it can be said whether or not the issue formulated from it is related to it or not. See N.N.P.C. v. Famfa Oil Ltd (2012) ALL FWLR (Pt. 635) p.204.

GROUND 3 reads:

The lower Court erred in law and acted without jurisdiction when it struck out Suit No. FHC/PH/CS/524/16.

PARTICULARS OF ERROR

(i)

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The lower Court had rightly found in respect of the appellant’s before it this: “The appellants are also guilty of this serial abuse……… I also noted the narration by learned counsel on the conduct of the 1st appellant who I agree displayed an infantile desperation to cling to office at all cost….”

(ii) The lower Court has also rightly found in respect of the 1st appellant before it thus:

“As for the 1st appellant it is obvious that it seems to have been seized by a passionate bizarre and outlandish desire to hold on to office no matter the cost thus he embarked on this foolhardy and reckless misadventure of going round Courts to obtain all sorts of orders. this action by the 1st appellant is deprecated by me.”

(iii) Form (i) and (ii) supra, the lower Court rightly found that all pre-existing suits initiated by the appellants and obtained by them were abusive.

(iv) Arising from (i)-(iii) supra, the abusive actions of the 1st and 2nd respondents deprecated by the lower Court could not have conferred any benefit on them or be a defence to the case at the trial Court.

(v) Having rightly found that the pre-existing suits

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initiated by the appellants before it were ‘foolhardy’, ‘reckless’, ‘abusive’ and liable to be deprecated, the lower Court was wrong to have used the said illegal/reckless actions as a basis of dismissing suit No. FHC/PH/CS/524/16.

(vi) Ex dolo malo non oritur action No Court will lend its aid to a man who grounds his cause of action on an immoral or illegal act.

(vii) Ex turpi causa non oritur actio From a dishonourable cause, an action does not arise.

The complaint of the appellant in ground 3 is that the majority decision of the Court of Appeal found that the 1st and 2nd respondents were guilty of serial abuse and rebuked them for these pre-existing suits but turned round to use these same suits as a basis for dismissing suit No. FHC/PH/CS/524/16.

Issue 3 questions whether the Court of Appeal was right to give judgment to the 1st and 2nd respondents who are guilty of serial abuse and were severally reprimanded. Issue 3 is clearly related to ground 3. Whether grounds 5, 10, 11, 17, 18 and 19 are concise.

Once grounds of appeal can be understood, they are said to be concise and such grounds are safe as they

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comfortably meet the requirements of the law.

In his brief, (page 9 -13) learned counsel, Chief A. Olujinmi displayed a thorough understanding of the grounds complained of, in his argument as to whether the said grounds were of mixed law and fact, for which leave was needed. This shows that the said grounds are easily understood. In the circumstances the said grounds are indeed concise.

In view of all that I have been saying, the Preliminary Objection is hereby overruled. The appeal is valid and it shall now be considered.

MAIN APPEAL

The facts are these. General elections were held in Nigeria in 2015. The P.D.P. lost the Presidential elections, while the A.P.C. won. Thereafter the Chairman of the P.D.P., Alhaji Adamu Muazu left the Office of Chairman of the Party abruptly. So the Party appointed Senator Ali Modu Sherrif, the 1st respondent, as the acting National Chairman while Professor Adewale Oladipo, the 2nd respondent, remained the party’s National Secretary.

In the year 2016 the 1st respondent, a member of the National Executive Committee and other members issued a Notice for the National Convention of the P.D.P. to

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be held in Port Harcourt on 21st, May 2016.

The 1st respondent signified his intention to contest for the office of National Chairman of the P.D.P. by submitting himself for screening. The screening exercise for aspirants into elective offices was held a day before the National Convention. That was on 20th May 2016. The 1st respondent failed the screening exercise. The Screening Committee issued a report dated 20th May, 2016 on the 1st respondent. It reads:

“SENATOR ALI MODU SHERIFF

The candidate is contesting for the office of the National Chairman. He submitted a half-filled nomination form without supporting documents. He had no tax clearance certificates for three years. He also had neither the P.D.P. membership card nor voter’s card. We found nothing in the nomination form he submitted without other relevant documents as to find him qualified to contest for the office of the National Chairman of the P.D.P. He is accordingly disqualified from contesting for the election.”

On being aware of this development, the 1st respondent purported to cancel the National Convention, relying on existing Court orders. This he did on 21st May,

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The day slated for the National Convention. The acts of the 1st respondent were ignored. The Convention went on and far reaching resolutions made. The 1st respondent was removed as Acting Chairman of the P.D.P., and a Caretaker Committee appointed to look after the affairs of the P.D.P. The P.D.P. was torn into two factions with the 1st respondent still claiming to be the Chairman of P.D.P. and the Caretaker Committee led by Senator Ahmed Makarfi.It was in this state that the appellant filed suit No: FHC/PH/CS/524/16 to put to rest once and for all the supreme nature of the National Convention of the P.D.P., and whether the 1st and 2nd respondents can override decisions made at the National Convention of the Party. Prior to and during the pendency of this suit the 1st and 2nd respondents and their allies instituted the following suits:

  1. FHC/L/CS/637/2016 – Adeyanju v. I.N.E.C. & Anor.
  2. FHC/L/CS/347/2016 – Adebayo Dayo & Anor v. I.N.E.C. & 3 Ors.
  3. FHC/L/CS/638/2016 – Olorunoje & Anor v. I.N.E.C. & 3 Ors.
  4. FHC/L/CS/605/2016 – Olemolu v. I.N.E.C. & 3 Ors.
  5. FHC/L/CS/613/2016 – Ali Modu

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Sheriff & 2 Ors. v. I.N.E.C. & 5 Ors.

  1. FHC/L/CS/636/2016 – Adebayo Dayo v. I.N.E.C. & 5 Ors.
  2. FCT/HC/CV/1867/2016 – Chief Joseph Jero v. P.D.P.
  3. FCT/CV/1443/2016 – Chief Emeka Dibia v. P.D.P.
  4. FCT/CV/M.7017/2016 – Chief Emeka Dibia v. P.D.P. (in Re: Senator Sheriff) & 19 Ors.
  5. FCT/CV/1822/2016 – Senator Ali Modu Sheriff & 18 Ors. v. P.D.P. & 7 Ors.
  6. FHC/ABJ/CS/439/2016 – Chief B. Akingboye & Anor v. (1) I.N.E.C. (2) P.D.P.
  7. FHC/ABJ/CS/464/2016 – Dr. Ali Modu Sheriff & 9 Ors. v. (1) I.N.E.C. (2) P.D.P.

Suit No: FHC/PH/CS/524/2016 is the suit which resulted in this appeal. The appellant’s as plaintiff’s filed the suit to reaffirm the supremacy of the PDP’s Constitution, the sovereignty of the National Convention as the highest decision making body of the party and for the Court to declare the resolutions passed at the National Convention held in Port Harcourt on 21st May 2016 as valid.

See also  Benson Ikoku V. Enoch Oli (1962) LLJR-SC

The learned trial judge agreed with the plaintiffs. His lordship Liman J resolved all the questions for determination and reliefs sought in the Originating Summons in favour of the

30

plaintiffs.

The respondents were not satisfied with the judgment. They lodged an appeal. It was heard by the Court of Appeal, Port Harcourt Division. That Court by a majority of two to one, Gumel, JCA, and Sanga, JCA, Orji-Abadua, JCA dissenting.

The concluding part of the majority judgment reads:

“…. Appeal has merit it is hereby allowed. Judgment of the Federal High Court Port Harcourt Division delivered on 4th July, 2016 is hereby set aside. The 1st respondents suit No: FHC/PH/CS/524/2016 filed before the lower Court is hereby dismissed for being an abuse of Court process……”

Dissatisfied with the decision of the Court of Appeal, the appellant appealed to the Supreme Court.

ISSUE 1

Whether Suit No. FHC/PH/CS/524/2016 is an abuse of process.

Learned counsel for the appellant observed that the parties, cause of action, reliefs, questions for determination and claims in the appellant’s suit at the trial Court were completely different from those in the pre-existing cases and the reliefs sought and obtained in the present suit. Relying on:

Arubo v. Aiyeleru (1993) 3 NWLR (Pt. 280) p.126

Saraki

31

Kotoye (1992) 18 NWLR (Pt. 264) p.146He submitted that the present suit is not abusive of the previous suits.

Learned counsel for the 1st and 2nd respondents observed that suit No. FHC/PH/CS/524/2016 which resulted in this appeal was filed to neutralize the orders made in suits No. FHC/L/CS/613/2016, FHC/L/CS/637/2016, and to validate the decisions of the National Convention. He submitted that the suit was an abuse of process having regard to the three cases above which were pending at the time the suit resulting in this appeal was filed.

He observed that all the parties in suit No. FHC/L/CS/613/2016 are parties in suit No. FHC/PH/CS/524/2016 and the claims in both suits are the same or substantially the same, further observing that the parties in suits Nos. FHC/L/637/2016, FCT/HC/CV/1443/2016 and FHC/PH/CS/524/2016 are the same, and the claims are substantially the same. Relying on:

N.I.M.B. Ltd v. U.B.N. Ltd (2004) 12 NWLR (Pt.888) p.599

Umeh & Anor v. Iwu & Ors (2008) 2-3 SC p.135.

He submitted that the Court of Appeal was right in finding that suit No. FHC/PH/CS/524/2016 was an abuse of Court

32

process and properly dismissed it.

The issue is whether suit No. FHC/PH/CS/524/2016 amounts to an abuse of process of the Court since at the time it was filed suits Nos. FHC/L/CS/637/2016, FHC/L/CS/613/2016 and FCT/HC/CV/1443/2016 were pending or proceedings had commenced.

The Rule is that where matters involving the same parties and the same claims are raised contemporaneously in two or more Courts, it is desirable and clearly in the interest of justice that these matters should be heard in only one of these Courts. It is designed to avoid multiplicity of proceedings on the same issues.

The basis of the Rule is the real possibility of two conflicting decisions in respect of one and the same subject matter. So it is desirable that the issues common to both matters are heard and determined in only one Court. See:

Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) p.156

F.B.N. Plc v. T.S.A. Industries Ltd (2012) 5-7 SC (Pt. ii) p.1

Barigha v. P.D.P. & 2 Ors (2012) 12 SC (Pt. v) p.84

R-Benkav Nig. Ltd v. Cadbury Nig. Plc (2012) 3 SC (Pt. iii) p.169

Dingyadi v. I.N.E.C. (No.2) (2010) 4-7 SC (Pt. i) p.76

Lokpobiri

33

Ogola & 2 Ors (2015) 10-11 SC (Pt. ii) p.102

It would amount to an abuse of process when a party uses the judicial process to the irritation and annoyance of his opponent, thereby tarnishing the administration of justice in the process. This would occur where party institutes a multiplicity of actions on the same subject matter against the same opponent on the same issue. Where two actions are filed one after the other and both actions are asking for a relief common to both of them, the second action is clearly vexatious and calculated to irritate and annoy the adversary.

Where a party goes forum shopping hoping to achieve a conceived right.

So once the action is between the same parties, their allies, on the same subject matter even if differently worded but with the same result the suit filed later in time is an abuse of process and is liable to be struck out.

Once the intention for filing the suit is found to be mala fide, it is an abuse of process.

The Originating processes in suits Nos.

  1. FHC/L/CS/613/2016
  2. FHC/L/CS/637/2016
  3. FCT/HC/CV/1443/2016,

must be examined to see if suit No.

34

FHC/PH/CS/524/2016 that gave rise to this appeal is an abuse of process. Suit No: FHC/L/CS/613/2016 was commenced on 6/5/2016. Buba J. presided. The suit is between:

  1. Alhaji Ali Mode Sheriff
  2. Professor Wale Oladipo
  3. Alhaji Fatai Adewale Adeyanju – PLAINTIFFS

v.

  1. I.N.E.C.
  2. P.D.P. – DEFENDANTS

The reliefs sought are:

(a) A Declaration that upon the community interpretation of Section 229 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) along with the provisions of Article 47(1) of the Constitution of the Peoples Democratic Party, the tenure of the 1st, 2nd and 3rd Plaintiffs in the office of the National Chairman, National Secretary and National Auditor respectively of the Peoples Democratic Party to which they were elected (or deemed elected) at the Special National Convention of the P.D.P. held on 10 and 11 December, 2014 is a four year term which expires in December, 2018.

(b) A Declaration that having regard to the provisions of Article 47 (6) of the Constitution of the Peoples Democratic Party (as amended) the 1st plaintiff who was appointed to serve out the tenure of

35

Alhaji Ahmed Adamu Mu-azu as National Chairman of the Peoples Democratic party is entitled to remain in office until 2018 when the tenure of Alhaji Ahmed Adamu Mu’azu expires.

(c) A Declaration that in the circumstances there can be no election to the office of National Chairman, National Secretary and National Auditor of the P.D.P. at the National Convention of the Party slated for May 2016.

(d) A Declaration that the Independent National Electoral Commission (I.N.E.C.) ought to restrain the Peoples Democratic party from conducting the elections into the offices of the plaintiffs and refuse to recognize any election to those offices which are conducted in breach of the provisions of Section 223 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Article 47 (1) of the Constitution of the Peoples Democratic Party.

(e) A Declaration that by the provisions of Article 47(1) and (6) of the Constitution of the Peoples Democratic Party, the Notice of Congress dated 15th March, 2016 referenced: PDP/DOM/GFI/VOL.III/590 and issued by the 2nd defendant, in so far as it pertains to the conduct of any election to the offices

36

currently occupied by the plaintiffs, is illegal, null, void and of no effect as the tenure of the plaintiffs in the offices has not expired.

(f) An Order restraining the 2nd defendant from conducting election into the offices of the plaintiffs until December 2018, when their four years term would have been spent.

(g) An Order directing the 1st defendant not to recognize any other persons apart from the plaintiffs as the holders respectively of the offices of the National Chairman, National Secretary and National Auditor of the Peoples Democratic Party until the convening of a National Convention of the 2nd defendant in 2018.

Suit No. FHC/L/CS/637/2016 was filed on 12 May, 2016. Idris J presided. The suit between

Alhaji Fatai Adewale Adeyanju – PLAINTIFF

v.

  1. I.N.E.C.
  2. P.D.P. – DEFENDANTS

The reliefs sought are:

(1) A Declaration that upon the community reading and interpretation of Section 223 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) along with the provisions of Article 33(1) (a) and 35 (1) of the Constitution of the Peoples Democratic Party the National Chairman of the

37

2nd defendant is the only person empowered and authorized to chair and preside over the National Convention of the 2nd defendant and all its meetings.

(2) A Declaration that only the National Convention chaired and presided over by Senator Ali Modu Sheriff, the National Chairman of the 2nd defendant can conduct elections to fill the seats of the available National Officers of the Party.

(3) A Declaration that there can be no election to the available National Offices of the 2nd defendant by any National Convention conducted in Lagos State or any other state in the Federation not chaired or presided over by the chairman of the 2nd defendant.

(4) A Declaration that the 1st defendant ought to restrain all members of the 2nd defendant from conducting or recognizing any parallel convention other than the chaired and presided over by Senator Ali Modu Sheriff, the National Chairman of the 2nd defendant and ought to refuse or recognize any election to National Offices of the 2nd defendant not carried out in the National Convention chaired or presided over by Senator Ali Modu Sheriff, the National Chairman of the 2nd defendant.

Suit No:

38

FCT/HC/CV/1443/2016 was filed on 8th April 2016. Mohammed J. presided. The suit is between Chief E. Dibia (plaintiff) and P.D.P. (defendant).

The reliefs sought are:

(a) A declaration that the defendant is bound to obey the provisions of the Constitution of the Peoples Democratic Party in the conduct of its affairs.

(b) A declaration that in view of the mandatory provisions of Article 47 (1) of the Constitution of the Peoples Democratic Party, the tenure of Alhaji Adamu Muazu was for a term of four years which tenure expires in 2018.

(c) A declaration that by the combined effect of Article 47 (1) and (6) of the Constitution of Peoples Democratic party, the legal effect of the resignation of Alhaji Adamu Muazu as the Chairman of the Peoples Democratic Party and the consequent appointment of Senator Ali Modu Sheriff is that the latter is entitled to serve out the tenure of the National Chairman of the Peoples Democratic Party till 2018.

(d) A declaration that by the provisions of Article 47 (1) and (6) of the Constitution of the Peoples Democratic Party and its Special National Congress held on 31 August, 2013, the tenure

39

of the 16 (sixteen) National Officers of the Peoples Democratic Party is for four years which tenure subsists till August, 2017.

(e) A declaration that by the provisions of Article 47 (1) and (6) of the Constitution of the Peoples Democratic Party, the Notice of Congress dated 15 March, 2016 referenced: PDP/DDM/CFI/VOL.III/590 and issued by the defendant as it pertains to the election of any of its National Officers is illegal, null, void and of no effect as the tenure of the said National Officers has not expired.

(f) A declaration that by the provisions of Article 47 (1) and (6) of the Constitution of the Peoples Democratic Party, the Notice of Congress dated 15 March, 2016 referenced: PDP/DDM/GFI/VOL.III/590 and issued by the defendant pertaining to the National Convention is null, void and of no effect as the tenure of Alhaji Adamu Mu’azu will expire in 2018 and Senator Ali Modu Sheriff having been appointed as its National Chairman pursuant to Article 47 (1) and (6) of the Constitution of the Peoples Democratic Party is legally entitled to serve out the four years tenure till 2018 in accordance with Article 47 (6) of the Constitution of the

40

Peoples Democratic Party.

(g) An Order of Court setting aside the Notice of Congress dated 15 March 2016 referenced: PDP/DOM/GFI/VOL.III/590 and issued by the defendant as it pertains to the National Convention for being illegal, unconstitutional, null, void and of no effect whatsoever.

(h) An Order of perpetual injunction restraining the defendant or any of its officers, privies, agents or howsoever described from according or giving effect to the Notice of Congress dated 15 March, 2016, referenced: PDP/DOM/GFI/VOL.III/590 and issued by the defendant pertaining to the National Convention or taking any other steps to hold or convene any National Convention for the purposes of electing any National Officers whose tenures have not expired contrary to the provisions of Article 47 (1) and (6) of the Constitution of the Peoples Democratic Party.

FHC/L/CS/524/2016 is the suit the 1st and 2nd respondents claim is an abuse of process. It is the suit which led to this appeal.

The trial High Court found that the suit (Supra) was not an abuse of process.

The majority decision of the Court of Appeal decided that the trial High Court was

41

wrong. The Court of Appeal said:

“….His failure to find that the Originating Summons in this appeal was an abuse of process against the various Court actions before Courts of co-ordinate jurisdiction in which various orders have been made which were valid and subsisting and which were duly brought to the attention of the Court is erroneous and wrongful and liable to be set aside and is hereby accordingly set aside. In consequence of the foregoing, that Preliminary objection against the Originating Summons in this appeal is hereby upheld. Suit No: FHC/PH/CS/524/2016 is an abuse of Court process and is accordingly struck out.”

Can this be correct

The majority decision of the Court of Appeal would be correct if the claims/reliefs in suit No: FHC/L/CS/524/2016 are the same or substantially the same as suits Nos:

  1. FHC/L/CS/613/2016
  2. FHC/L/CS/637/2016
  3. FCT/HC/CV/1443/2016

The 1st respondent or his allies appear in all the suits. The parties in the three suits above are not the same as the parties in suit No: FHC/L/CS/524/2016.

Now to the reliefs:

Suit No: FHC/L/CS/613/2016.

Centers on

  1. The tenure

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of office of the 1st, 2nd and 3rd plaintiffs.

  1. Declaration that INEC restrains PDP from conducting election into the office of the plaintiffs.
  2. Declaration that the Notice of Congress dated 15 March 2016 referenced: PDP/DOM/GFI/VOL.III/590 issued to PDP to conduct any election to the offices occupied by the plaintiffs is illegal, null and void and of no effect.
  3. An Order restraining PDP from conducting election into the Offices of the plaintiffs until December, 2018.

The claims/reliefs are similar to those in FHC/L/CS/637/2016 in that both suits are on elections and tenure of office of the 1st respondent and his allies.

As for suit No: FCT/HC/CV/1443/2016 it is about obedience to the Constitution of the PDP. Once again, to the tenure of office of the 1st respondent, and for an order setting aside the Notice of Congress dated 15th March 2016.

Suits Nos. FHC/L/CS/613/2016, FHC/L/CS/637/2016 and FCT/HC/CV/1443/2016 and indeed over ten other suits were filed to ensure that, particularly the 1st respondent remains in the office of Chairman of the PDP until the unexpired tenure of the former Chairman expires in December

43

These suits were filed before the National Convention of the party held in Port Harcourt on 21 May, 2016.Suit No FHC/L/CS/524/2016 was filed after the convention (i.e. after 21 May 2016).

After examining the claims/reliefs therein it is clear that the suit supra was filed to affirm the supremacy of the PDP Constitution. The sovereignty of the National Convention as the highest decision making body of the PDP, and the validity of the resolutions passed at the National Convention. On the other hand the suits filed by the 1st and 2nd respondents, and their allies centered on tenure and election of certain National Officers of the PDP.

I am satisfied that suit No FHC/L/CS/524/2016 is not an abuse of Court process. The trial Court and the dissenting judgment of the Court of Appeal were in the circumstances correct.

On the other hand, it is the 1st and 2nd respondents who are themselves guilty of abuse of process. The Court of Appeal was correct when it found that they were guilty of filing and instigating abusive actions in a desperate bid to perpetuate himself in office.

Once again suit No.FHC/L/CS/524/2016 is not an

44

abuse of process.

ISSUE 2

Whether the National Convention of the P.D.P. which was held on 21st May 2016 in Port Harcourt, Rivers State was illegal.

Learned counsel for the appellant observed that no Court made any specific order to the effect that the National Convention of the P.D.P. be put on hold. Reliance was placed on Section 128 (1) of the Evidence Act.

He observed that in Suit No FCT/HC/CV/1443/2016 the trial learned judge bluntly refused to stop the holding of the Convention. In suit No. FHC/L/CS/613/2016 the learned trial judge ordered that no election of National Officers shall be conducted. While in suit N. FHC/L/CS/637/2016 the learned trial judge did not order that the PDP Convention should not hold or that it should be put on hold.

See also  Reynolds Construction Company Nigeria Ltd. V. Rockonoh Properties Company Ltd (2005) LLJR-SC

He submitted that the Court of Appeal decision that the P.D.P. Convention be put on hold is perverse. Reliance was placed on Atolagbe v. Shorun (1985) 1 NWLR (PT. 2) P. 360

Learned counsel for the appellant observed that the Court of Appeal only relied on Article 47 (3) of the PDP Constitution to hold that the removal of the National Executive Committee by the PDP National

45

Convention was wrong. He submitted that Article 47 (3) of the PDP Constitution only relates to a situation where removal of PDP executives is done by vote of confidence. He observed that since 1st respondent is not an elected tenured executive of PDP, Article 47 (3) of the PDP Constitution does not apply to him, contending that the Court of Appeal was wrong to have applied it to him.

He submitted that the Court of Appeal ought to have examined Articles 33 and 35 of the PDP Constitution before deciding if the National Convention was right or wrong to remove the National Executive Committee. Relying on;

Ishola v. Ajiboye (1994) 7-8 SCNJ (Pt. 1) p.1

Marwa v. Nyako (2012) 6 NWLR (Pt. 1296) p.199

He submitted that if the Constitution of PDP was properly construed, the decision of the Court of Appeal would be found to be wrong, while that of the trial Court is correct.

Learned counsel for the 1st and 2nd respondents observed that the orders made in suits Nos: FHC/L/CS/613/2016 and FHC/L/CS/637/2016 are explicit enough as orders meant to prevent parties from taking actions during the pendency of the cases as this would confront the

46

Courts with a fiat accompli. He submitted that the Court of Appeal was right to set aside the judgment of the trial Court.

On whether the Court of Appeal considered the PDP’s Constitution, he submitted that the PDPs Constitution was considered strictly in relation to the holding of the National Convention. Reference was made to pages 1477, 1478 of the Record of Appeal.

He observed that the provisions of Article 47 (3) of the P.D.P. Constitution guarantees security of tenure against arbitrariness, and the Article did not distinguish between an elected and appointed National Officer.

He submitted that the judgment of Mohammed J. in Suit No: FCT/HC/CV/1443/2016 is clear that the 1st respondent shall remain in office until a new election is conducted in the office of Chairman.

Finally he observed that the Deputy National Chairman was not assisting or deputizing for the 1st respondent when he presided over the Convention. He submitted that rather those who conducted the National Convention were acting illegally and in breach of the Constitution of PDP. He urged this Court to discountenance the arguments of the appellant’s

47

learned counsel.

I shall answer this issue in two parts.

  1. Was the National Convention held in disregard of subsisting orders of the Courts
  2. Was the National Convention held in breach of extant provisions of the Constitution of PDP

There were three subsisting Court orders before 21st May 2016, when the National Convention of the PDP was held. They are:

(a) Suit No: FCT/HC/CV/1443/2016 is a final judgment, delivered by Mohammed J on 18th May 2016.

In that judgment it was decided:

(i) That the defendant (i.e. PDP) is bound to obey the Constitution of the Party in the conduct of its affairs.

(ii). That in view of the mandatory provisions of Article 47 (6) of the Constitution of PDP, the tenure of Alhaji Adamu Muazu was for a term of four years which was to expire in 2018.

(iii) That relief No. (c) which sought for a declaration that the 1st appellant (i.e. Senator Ali Modu Sheriff) is entitled to serve out the tenure of Alhaji Adamu Mu’azu is refused.

(iv) That Senator Ali Modu Sheriff is to serve pending the conduct of election to fill the vacancy.

(v) That the tenure of office of the 16

48

National Officers of the P.D.P. is for four years which tenure subsists till August, 2017.

(vi) Relief (e) which sought for a declaration that the Notice of Congress dated 15 March 2016 referenced: PDP/DOM/GFI/VOL./III/590 issued by the P.D.P. over the election of any of its National Officers is illegal, null, void and of no effect as the tenure of the said National Officers has not expired was equally refused, while relief (f) was refused, and reliefs (g) and (h) were abandoned.

(b) In suit No FHC/L/CS/613/20916 Buba J granted interlocutory order of injunction restraining the 2nd defendant (i.e. PDP) from conducting any election into the offices of the National Chairman, National Secretary and National Auditor occupied by the plaintiffs (i.e. the 1st and 2nd appellants in this appeal.

(c) In suit No: FHC/L/CS/637/2016 Idris J. made interlocutory orders directing the parties therein not to take any step that will foist a fiat accompli on the Court.

Suits Nos: FHC/L/CS/613/2016, FHC/L/CS/637/16 and FCT/HC/CV/1443/2016 were on tenure and election into office of the 1st and 2nd respondents and some other members of the P.D.P. The Judgment

49

in FCT/HC/CV/1443/2016 which was a final judgment settled once and for all:

  1. The tenure of office of Acting Chairman of P.D.P.
  2. The right of P.D.P. to hold National Convention.
  3. The status of the Notice of Congress.
  4. That Senator Ali Modu Sheriff was to serve out the four years tenure of Alhaji Adamu Mu’azu was refused.
  5. Order setting aside notice of Congress was refused.

With the above, the interlocutory orders ceased to be of any worth, and this final judgment in suit No. FCT/HC/CV/1443/2016 subsists until set aside. It is in the circumstances clear that the judgment in suit No: FCT/HC/CV/1443/2016 did not declare the Notice of Congress reference No: PDP/DOM/GFI/VOL.III/590 dated 15 March 2016 illegal. Neither did it restrain the PDP from going ahead with its National Convention fixed for 21 May 2016. Neither this judgment or any judgment restrained the P.D.P. from holding its National Convention. The National Convention was not held in disregard of any subsisting orders of the Court.

(2) Was the National Convention held in breach of extant provisions of the Constitution

A Constitution and in

50

particular that part of it which is on the same subject matter are to be construed together. The entire provisions are to be read as a whole. It is only then that the subject matter in issue can be properly understood and applied correctly.

The Court of Appeal came to the conclusion that the National Convention did not act in accordance with the PDP Constitution. The Court said:

“Upon considering the way and manner the National Executive Committee of the party was removed on 21 May 2016 by the Party during its National Convention it is clear that the provision of Article 47 (3) of the PDP Constitution was not observed and I so hold….

Thus the said National Convention disobeyed a valid Court order issued on 18 May 2016 and the provisions of Article 47 (3) of its Constitution.”

According to the Court of Appeal the National Convention was wrong to remove the National Executive Committee because:

(a) It did not comply with Article 47 (3) of the P.D.P. Constitution.

(b) It failed to obey valid Court order issued on 18 May 2016.

The subject matter on this issue is covered by Article 33, 47 (3), 58 and 59 of the P.D.P.

51

Constitution.

Article 33 (1)-(5) (e) reads:

“33(1) There shall be a National Convention of the party which shall consist of –

(2) The National Convention shall be the supreme and controlling authority of the party within the limits prescribed in this Constitution and it shall be the principal representative, policy making and administering body of the party.

(3) Except in the exercise of the functions granted only to other bodies as specified in this Constitution or in the regulations made pursuant to the provisions of this Constitution, the National Convention shall have supremacy in all matters pertaining to the party and all officers and organs of the party shall be bound in the exercise of their functions by the decisions of the National Convention.

(4)

(5) The National Convention shall have and exercise authority to –

(a) formulate policies and programs for the party.

(b) elect or remove the National officers of the party.

(e) appoint such Committees, as it may deem necessary, desirable or expedient and assign to them such powers and functions as it may deem fit.”

Article 33(2) states clearly

52

that the National Convention is the supreme and controlling authority of the party and it has supremacy in all matters pertaining to the party and all officers.

Article 35(3) (a) (b) and (c) of the P.D.P. Constitution states that:

“35(3). The Deputy National Chairman shall perform the following functions –

(a) Assist the National Chairman in the discharge of his duties;

(b) Deputize for the National Chairman in the latter’s absence; and

(c) Perform such other party functions as may be assigned to him.”

In view of the provisions of Article 35 (3) (b) of the P.D.P. Constitution the Deputy National Chairman can preside over the National Convention of the Party in the absence of the Chairman.

Article 47 (3) of the P.D.P. Constitution provides that:

“A vote of Confidence may be moved on any member of the Executive Committee of the Party at any National Convention or Congress of the Party two years into the tenure of such member of the Executive Committee, and where such a vote fails to be carried the Executive Committee member shall be replaced at that National Convention or Congress, as the case may be. Provided

53

that two month notice of such vote of confidence motion shall be given circulate it to the relevant chapters one month before the National Convention or Congress as the case may be.”

The law is long settled that “may” is not always “may”. It may sometimes be equivalent to “shall”, seeIfezue v. Mbadugha (1984) 1 SCNLR p.427.

Two months notice of vote of confidence motion shall be given and circulated only when the vote of confidence is intended to be carried. May in the circumstance is directory and not mandatory. A National officer can be removed without a vote of confidence.

Article 58 (1) of the PDP Constitution reads:

“58(1). Subject to the provisions of this Constitution, the Party shall have power to discipline any member who:

(a) Commits any breach of the Party’s Constitution and/or manifesto;

(b) Says or does anything likely to bring the Party into disrepute, hatred or contempt;

(c) Disobeys or neglects to carry out lawful directives of the Party or any organ or officer of the Party;

(d) Engage in dishonest practice, defrauds the Party, its members or officials;

(e) Is persistently absent from

54

meetings or other official duties;

(f) Engages in anti-party activities;

(g) Engages in disorderly conduct at meeting, or rallies or at any Party functions;

(h) Engages in any conduct likely to cause disaffection among members of the Party or is likely to disrupt the peaceful, lawful and efficient conduct of the business of the Party;

(i) Engages in unauthorized publicity of disputes within the Party or creates a parallel Party organ at any level;

(j) Promotes factions or belongs to any group under the guise of the Party and by whatever name called, not being one provided for in this Constitution;

(k) Organizes, retains, trains, equips or encourages the organization, retention, training, equipping of any member or group of members for the purpose of employing violence or coercion or any form of intimidation whatsoever;

(l) Resorts to Court action or litigation on any disputes or on any matter whatsoever concerning rights, obligation and duties of any member of the Party without first availing itself remedies provided by the Party under this Constitution; or

(m) Fails, refuses or neglects to treat a petition, complain or

55

appeal timeously.”

Article 59 (1) on sanctions for offences states that:

“59(1) Any member of the Party who commits any of the offences listed in Section 58 (1) of this Constitution shall be liable to any combination of the following penalties –

(a) Reprimand;

(b) Censure;

(c) Fine;

(d) Suspension with fine;

(e) Debarment from holding any Party Office;

(f) Removal from Office

(g) Expulsion.”

There can be no doubt after examining the Articles of the P.D.P. Constitution that the National Convention has enormous and sweeping powers over the affairs of the Party. When the 1st respondent abandoned the Convention, the P.D.P. invited its Deputy National Chairman to preside at the Convention in accordance with Article 35 (3) (b) of its Constitution.

At the National Convention, far reaching decisions were taken in accordance with the P.D.P.’s Constitution. Furthermore the Court of Appeal was wrong to restrict its findings and come to a perverse conclusion after examining only Article 47(3). It ought to have examined other Articles on the same subject matter. If it did so it would have come to the conclusion

56

that the National Convention acted according to the P.D.P.’s Constitution.

It must also be noted that the motion for the removal of the National Officers was brought under Article 33(5) (b) of the P.D.P. Constitution. The Dissolution of the National Executive Committee was Constitutional.

Was the Caretaker Committee properly appointed

Article 33 (5) (e) of the P.D.P. Constitution states that:

(5) the National Convention shall have and exercise authority to –

(e). appoint such Committees as it may deem necessary, desirable, or expedient and assign to them such powers and functions as it may deem fit.

Applying the above to the final conclusions of the National Convention, the National Convention was correct to dissolve the National Executive Committee and the National Working Committee and appoint a Caretaker Committee.

Once again all the acts, decisions of the National Convention were not made in breach of any provision of the Constitution of the PDP.

The appellant’s arguments on waiver and estoppel cannot be considered by this Court since it was not considered by the Court below and no leave was sought

57

to raise it as an issue in this Court.

The 1st respondent and his allies filed over ten suits. The Court of Appeal had this to say. The 1st appellant (i.e. 1st respondent) I agree displayed an infantile desperation to cling to office at all costs. I agree with the observation of the Court of Appeal. The 1st respondent was always driven by the implacable desire to remain in office as chairman at all cost. That desire was explored relentlessly by filing over ten suits within one year to perpetuate himself in office. Most of those suits have been abandoned.

They shall forever gather dust in judicial archives and remain dusty reminders of how not to seek judicial remedy.

The stakes are very high in Political matters. So, if allowed, political office seekers would not hesitate to file multiplicity of suits on the same subject matter, hoping to get a favourable judgment from one Court or the other. Their quest for this includes forum shopping. Heads of Court must by now be aware of this trend and stop this annoying practice of assigning cases on the same subject matter to different JUDGES, who very likely would render conflicting decisions,

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ending up making the judiciary a laughing stock.

Trial judges must also be on the lookout, and refrain from proceeding with any case when aware that his brother judge is handling a similar matter.

In the end it is clear to this Court that suit No. FHC/PH/CS/524 is not an abuse of process. The National Convention which was held on 21 May 2016 in Port Harcourt, Rivers State was properly convened.

After examining the provisions of the P.D.P. Constitution and the resolutions passed and adopted at the National Convention this Court is satisfied that the National Convention acted constitutionally when it dissolved the National Executive Committee and the National Working Committee and appointed Caretaker Committee under Articles 33 (5) (b) and (e) of the P.D.P. Constitution.

There is merit in this appeal. The appeal is allowed. The judgment of the trial Court which was affirmed by the dissenting judgment of the Court of Appeal is affirmed by this Court. Appeal allowed.

Costs of Two Hundred and Fifty Thousand Naira (N250,000.00) is awarded against the 1st and 2nd Respondents’.


SC.133/2017

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