Sir Friday Nwanozie Nwosu V. Peoples Democratic Party & Ors (2018)
LAWGLOBAL HUB Lead Judgment Report
AMINA ADAMU AUGIE, J.S.C.
This Appeal is a fallout of the discord that followed the Primary Election conducted by first Respondent to select its gubernatorial candidate for the 2015 General Election. The third Respondent, who won the said Primaries, is the present Governor of Abia State.
The Appellant and fourth Respondent, who vied for that seat, and who lost to the third Respondent, instituted a number of Suits at various Divisions of the Federal High Court, challenging same.
The Appellants Suit initially filed at the Federal High Court, Abuja, was transferred to Federal High Court, Umuahia, and it was again transferred to the Federal High Court, Owerri, [FHC Owerri], where it was given the new Suit number FHC/OW/CS/191/2015.
The fourth Respondent later filed a separate action against the third Respondent at the Federal High Court, Abuja – Suit No. FHC/ABJ/CS/71/2016. The Appellant applied and was joined as a Defendant to the said fourth Respondent’s Suit filed at FHC Abuja, wherein he later challenged the jurisdiction of the said FHC Abuja to hear and determine the
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fourth Respondent’s Suit on the ground that it was an abuse of Court process since the fourth Respondent filed same after his own Suit on same subject matter.
The FHC Abuja overruled Appellant’s Objection and entered Judgment in favour of fourth Respondent. The third Respondent appealed against the decision of the FHC Abuja disqualifying him to Court of Appeal, Abuja (COA Abuja). The first Respondent also appealed challenging the disqualification of the third Respondent, and Appellant appealed against the part overruling his Objection.
The COA Abuja allowed the third Respondent’s Appeal and first Respondent’s Appeal but it dismissed the Appellant’s Appeal. It was these three decisions of the COA Abuja that culminated into the three Appeal Nos. SC. 717/2016, SC. 719/20016 and SC.739/2016, which the third Respondent, first Respondent and the Appellant filed in this Court respectively against the decisions of COA Abuja.
Meanwhile, the Appellant’s other Suit filed at the FHC Owerri was dismissed and he had appealed to the Court of Appeal, Owerri {COA Owerri} – Appeal No. CA/OW/190/2016. While the said three Appeals were pending before this
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Court, the COA Owerri granted a stay of proceedings of the Appeal before it to await the outcome of the three Appeals before this Court, particularly SC.739/2016.
This Court consolidated the said Appeals and in its Judgment delivered on 12/5/2017; this Court dismissed all the three Appeals. Regarding SC/739/2016, M. D. Muhammad, JSC, concluded that
The Appellant in the instant appeal participated in the 2nd Respondents primary election of 8/12/2014 for the 2015 Abia State gubernatorial election. So did the Appellant in Appeal No. SC/717/2016. Each of them has the right and platform under Section 87(9) of the Electoral Act, the one independent of the other to seek the reliefs the law provides to an “aspirant either of them having participated in the party primary election in respect of which result they are aggrieved. Following his Application, the trial Court ordered that Appellant herein be joined in the Suit commenced by the Appellant in Appeal No. SC.717/2016. Appellant in the instant case needed not necessarily to have been a Party in the Suit subsequently commenced by the Appellant in Appeal No. SC.717/2016 to obtain the
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reliefs he earlier approached the Court in his own Suit. The lower Courts finding that the Amended originating Summons of the Appellant in Appeal No. SC/717/2016 is not an abuse of process of Court is therefore, unassailable. The Appellants germane issue in the Appeal is therefore, accordingly resolved against him.
After the Judgment of this Court in the aforesaid three Appeals, the Appellant’s Appeal No. CA/OW/190/2016 came up for hearing at the COA Owerri. However, by an Application filed on 13/6/2017, the third Respondent prayed the COA Owerri for an Order striking out or dismissing the aforesaid Appeal for want of jurisdiction.
The Grounds for the third Respondent’s Objection are as follows –
(i) On 2/12/2016, this Hon. Court stayed further proceedings in Appeal No. CA/OW/190/2016 pending determination of SC/739/2016: Friday N. Nwosu v. Dr. Sampson U. Ogah & 3 Ors.
(ii) The said Appeal No. SC/739/2016 was consolidated with Appeal Nos SC/717/2016: Dr. Sampson U. Ogah v. Dr. Okezie V. Ikpeazu & 3 Ors; SC/719/2016: Dr. Sampson U. Ogah v. PDP and 3 Ors.
(iii) The said three Appeals were determined by the
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Supreme Court against the Appellant in favour of 3rd Respondent on 12/5/2017.
(iv) Further to the said Judgment of 12/5/2017 referred to in paras (i), (ii) and (iii) above, this Appeal No. CA/OW/190//2016 has become spent and or academic.
(v) Proceeding with the hearing of the Appeal in the peculiar circumstances of the decision of the Supreme Court in the afore-stated Appeal Nos. SC/717/2016, SC/719/2016 and SC/739/2016 will be tantamount to inviting this Honourable Court of Appeal to review or sit on appeal over the said Judgment of the Supreme Court delivered on 12/5/2017.
(vi) The Court of Appeal has no jurisdiction to sit on Appeal or review or set aside a judgment of the Supreme Court.
The COA Owerri readily agreed with the third Respondent and in its Ruling delivered on 18/7/2017 per Bada, JCA, it concluded thus-
The Learned Counsel for the Appellant’s submission to pursue this Appeal under consideration to finality, is in my view, tantamount to an invitation to this Court to sit on Appeal and review the Judgment of the Supreme Court in Appeal Nos SC/717/2016, SC/719/2016 and SC/739/2016. This is a Jurisdiction, which this Court
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does not possess. This Court in its Ruling delivered on 2/12/2016, on the issue of Stay of Proceedings gave a caveat per Agbo JCA that:
Any attempt to continue with the hearing of this Appeal will not only scandalize the judicial system but will do violence to the principle of stare decisis and create avoidable judicial anarchy.
Consequent upon the foregoing, I am of the view that this Appeal i.e. CA/OW/190/2016 is spent and it has become academic in view of the decision of the Supreme Court delivered on 12/5/2017 in Appeal Nos SC/717/20016, SC/719/2016 and SC/739/2016.
It is this Ruling delivered by the COA Owerri on 18/1/2017 that is the subject of this second Appeal filed by the Appellant in this Court.
The Notice of Appeal he filed contains six Grounds of Appeal, and the first, second and fourth Respondents are challenging the competency of the Grounds of Appeal. They each filed a Notice of Preliminary objection that they argued in their respective briefs.
The third Respondent also filed a Notice of Preliminary Objection, but he is challenging the jurisdiction of this Court
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to entertain the Appeal itself in the first place. Thus, he is praying this Court for –
An Order dismissing Appeal No. SC.693/2017: Sir Friday Nwanozie Nwosu v. PDP & 3 Ors., as constituting an abuse of the process of Court and for want of jurisdiction.
The Grounds for the third Respondent’s Objection are as follows –
i. This Appeal No.SC.693/2017 arose from the decision of the COA Owerri delivered on 18/7/2017 in Appeal No. CA/OW/190/2016: Sir Friday Nwanozie Nwosu v. PDP & 3 Ors.
ii. By an order of the COA Owerri made on 2/12/2016, the COA Owerri stayed further proceedings in Appeal No. CA/OW/190/2016: Sir Friday Nwanozie Nwosu v. PDP & 3 Ors., pending determination of Appeal No.SC.739/2016: F. N. Nwosu v. Dr. S. U. Ogah & 3 Ors.
iii. The ground for the said order of stay of proceedings is that the said Appeal No. CA/OW/190/2016 is related to the same Parties, the same facts, the same issues; and arose from the same subject matter as the Supreme Court Appeal No. SC.739/2016 and that –
Any attempt to continue with the hearing of this Appeal will not only scandalize the judicial system but will do violence to the principle of stare decisis and
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create avoidable judicial anarchy.
iv. The Appellant in this Appeal — did not Appeal against the decision of the COA Owerri in Appeal No. SC.739/2016. – – on grounds that the Parties, the facts, the Issues and subject matter were the same as the Appellant’s Appeal then before the Supreme Court in Appeal No. SC.739/2016. Thus, the said decision of the COA Owerri given on 2/12/2016 remains unchallenged, inviolate and binding on the Appellant to this day.
v. The 3rd Respondent in the present Appeal No. SC.493/2017 was the 3rd Respondent in the said Appeal No. SC.739/2017. The aforesaid Appeal No.SC.739/2016: Sir F Nwosu v. Dr. S. U. Ogah & 3 Ors was consolidated with Appeal Nos SC/717/2016: Dr. Sampson U. Ogah v. Dr. O. Ikpeazu & 3 Ors and SC/719/2016: Dr. Ogah V. PDP & 3 Ors.
vi. On 12/5/2017, the Supreme Court determined and dismissed the aforementioned Appeal NO.SC.739/2016: Sir F. Nwosu v. Dr. S. U. Ogah & 3 Ors alongside Appeal Nos SC/717/2016 and SC/719.2016.
vii. Pursuant to the Application of the 3rd Respondent urging the COA Owerri to strike out the said Appeal No. CA/OW/190/2016 as having become academic, spent,
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speculative and hypothetical in the light of the Supreme Court decision of 12/5/2017 on Appellant’s Appeal No. SC.739/2016. COA Owerri on 18/7/2017 struck out the Appeal No. CA/OW/190/2016 on the ground that this Appeal has become spent in view of the decision of the Supreme Court delivered on 12/5/2017 in Appeal Nos SC/717/2016. SC/717/2016 & SC.739/2016.
viii. Further to paragraphs (i) – (vii), this Appeal No. SC.693/2017 arising from the decision of COA in Appeal No. CA//OW/190/2016 given on 2/12/2016 and 18/7/2017 constitute an unrepentant abuse of the process of Court in consequence of which the Supreme Court has no jurisdiction to entertain the Appeal in that:
(a) The Appeal is an attempt to re-litigate issues already decided between the same Parties, on the same facts and subject matter in Appeal No. CA/OW/190/2016 by the COA Owerri on 2/12/2016, which stayed further proceedings in this Appeal pending the determination of the Appellant’s Appeal in the Supreme Court in Appeal No. SC/739/2016. The said decision of 2/12/2016 was never challenged on Appeal. The decision is therefore binding on the Appellant.
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(b) The Appeal is also an attempt to re-litigate the issues already decided by the Supreme Court in Appeal Nos. SC/717/2016; SC/719/2016 and SC/739//2016 between the same parties on the same issues and subject matter (i.e. whether the 3rd Respondent is disqualified from contesting the 2015 Governorship election in Abia State under the platform of PDP for allegedly forging or presenting forged or false tax papers to INEC for purposes of the said election).
(c) The Appeal is an unnecessary addition to the multiplicity of actions that have arisen from the same subject matter against the same opponent (3rd Respondent in this case) already determined in 3rd Respondents favour in May 2017.
(d) The Appeal has become academic, spent, hypothetical and speculative in the light of the Supreme Court decisions in the earlier Appeal Nos. SC/717/2016: SC/719/2016 and SC/739/2016 on the same facts, between the same Parties over the same subject matter.
(e) The Appeal is also an attempt to bring the judicial process or system into disrepute, ridicule or contempt with a view to undermining the integrity of the earlier decisions of the Supreme Court on the same
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subject matter between the same Parties and thereby introducing anarchy to the judicial system as the Appeal is in direct conflict with and thus, a sabotage of the subsisting Orders and decisions of the Supreme Court in Appeal Nos. SC/717/2016; SC/719/2016 and SC/739/2016. It is in the interest of justice, the public as well as the democratic and judicial systems that there should be an end to litigation, particularly, when subject matter of the litigation has been fully determined by the Supreme Court. which is the apex Court of the land.
Preliminary objection is the procedure used where a Respondent opposes the hearing of an Appeal, and its purpose is to terminate the hearing of the Appeal in limine either partially or totally – see S.P.D.C.N. V. Amadi (2011) 14 NWLR (Pt. 1266) 157 at 192 SC and Mohammed & Anor V. Olawunmi & Ors (1990) 4 SCNJ 23, wherein Nnaemeka-Agu, JSC, explained the rationale for this as follows –
By the preliminary objection, he is saying that the Suit or Motion before the Court ought not be heard at all because it is incompetent or is bedeviled by some other fundamental vice. If the Court, by its Ruling,
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decides that the objection is not well-founded, that does not necessarily mean that the [said] Suit or Motion – – must succeed. The Court is then bound to consider the Suit or Motion on its merits.
In this case, this Court is faced with four Preliminary objections by each of the four Respondents, and the question now is which one takes precedence in resolving the issue of whether this Appeal is incompetent or is bedeviled by some other fundamental vice.
In my view, the Objection raised by the third Respondent that deals with whether the Appeal is an abuse of Court process or not, must be given priority since an abuse of Court process constitutes a fundamental defect, the effect of which will lead to a dismissal of the process, which is abusive Dingyadi V. INEC [No.2) (2010) 18 NWLR (Pt. 1224) 154 SC. In other words, once the Court is satisfied that a proceeding before it amounts to an abuse of Court process, it has the right to invoke its coercive powers to punish the Party in abuse of its process, and as this Court stated in Arubo V. Aiyeleru (1993) 3 NWLR (Pt. 280) 125. quite often, that power is exercised by a dismissal
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of the action’ which constitutes the abuse.”
The point being made is that the objection raised by the other Respondents to the Appellant’s Grounds of Appeal on the ground inter alia that they raise issues of facts or of mixed law and facts, can always await the outcome of third Respondent’s objection.
This is because the Court reserves the prerogative and the inherent jurisdiction to protect itself from an abuse of its process, and any case, which is an abuse “must go under the hammer so as to halt the drift created by the abuse”, this Court has this power – See Dingyadi & Anor V. INEC & Ors (2011) 10 NWLR (Pt. 1255) 347 SC.
In this case, the third Respondent cited the following on the definition of an abuse of Court process – Saraki V. Kotoye (1992) 1 NWLR (Pt. 264) 156 CBN V. Ahmed (2001) 11 NWLR (Pt. 724) 369, and submitted that this Appeal falls within the stated definition.
Most of his arguments/submissions thereon are as reflected in the Grounds of his Objection reproduced above. Suffice it to say that his position is that Parties, issues, facts and subject matter sought to be re-litigated by the
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Appellant in this Appeal are all the same as his earlier Appeal determined by this Court on 12/5/2017 in SC/739/2016 consolidated with SC/717/2016 and SC/719/2016. therefore, this Appeal constitute a flagrant abuse of the process of this Court, citing Arubo V. Aiyeleru (supra), Adigun & Ors V. Sec. Iwo LGA & Anor (1999) 8 NWLR (Pt. 613) 34, Oluwaniyi V. Adewumi (2008) 13 NWLR (Pt. 1104) 387, Abubakar V. Bebeji Oil & Allied Products Ltd (2007) 18 NWLR (Pt. 1066) 319 SC. A.G. Anambra V. Uba (2005) All FWLR (Pt. 277) 909, N.I.C V. FCI Ltd (2007) 2 NWLR (Pt. 1019) 610 and Okorocha v. PDP (2014) 7 NWLR (Pt. 1406) 213 SC.
He also argued that this Appeal constitutes an abuse of Court process on the ground of multiplicity of actions (or of Appeals), citing Okorodudu V. Okoromadu (1977) 3 SC 2l. Oyegbola V. Esso West African Inc. (1966) 1 ALL NLR 170, Mogaji V. NEPA (2003) FWLR (Pt. 153) 239, Dingyadi V. INEC (2010) FWLR (Pt. 550) 1204: and that Appellant ought to have known that this Appeal, which seemed viable before the said decisions of this Court, had become unviable, doomed or dead, following its determination of those Appeals on 12/5/2017, which completely snuffed the life out
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of this Appeal, and thereby rendered it spent or academic or speculative, citing YarAdua V. Abubakar (2008) 19 NWLR (Pt. 1120) 236 SC.
He further submitted that unlike the situation in the cases of Saraki v. Kotoye (supra) and CBN V. Ahmed (supra), the Appellant cannot hide under the excuse that he is pursuing his constitutional right of appeal or that the Court of Appeal and Supreme Court held that he could pursue Suit No. FHC/OW/CS/191/2015 independently of the fourth Respondent’s Suit No. FHC/ABJ/CS/71/2016 and the Appeal Nos. SC/717/2015 and SC/719/2016, to pursue this Appeal; that as rightly found by this Court in his Appeal No. SC/739/2016, that Appeal and this Appeal relate to the same subject matter, Parties, facts and issues, therefore, with the determination of his Appeal No. Sc.739/2016 by this Court on 12/5/2017, the Appellant lost whatever constitutional right of appeal that enured in his favour to pursue this Appeal, as there must be an end to litigation.
Furthermore, that having regard to the earlier decision of COA Owerri given on 2/12/2016 (which was not appealed against), and in particular, the said Judgment of this
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Court in SC/739/2016, SC/717/2016 and SC/719/2016, wherein this Court held that the said Suit No. FHC/OW/CS/191/2015 from which this Appeal arose is on all fours with the facts, issues, Parties and subject matter in suit No. FHC/ABJ/CS/71/2016 from which the Appeal No. SC/739/2016 consolidated with SC/717/2016 and SC/719/2016 arose, this Appeal is a most unpardonable and unrepentant abuse of Court process, citingObi V. INEC No 3 6 – 7 SC (Pt. 11) 1, J.C Ltd V. Ezenwa (1996) 4 NWLR (Pt. 443) 392, and Okorocha V. PDP (supra).
The Appellant argued in his Reply Brief that an examination of the third Respondent’s Grounds of Objection discloses that he lost grasp of the true state of his case that gave rise to this Appeal; that his contention in SC/739/2015 was that the fourth Respondent abused the process of Court when, as the fourth Defendant in the Appellant’s earlier Suit, he photocopied or replicated the process that he served on him, and then filed a subsequent and fresh Suit.
He submitted that this Court had upheld his right to pursue and conclude his own right of action, for which he sued
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earlier at the trial Court in FHC/OW/CS/191/2015, which is what is pending in this Appeal, for the determination on merit now before this Court, and urged this Court to examine the Grounds of objection to this Appeal to determine its substance, the Court being imposed with this duty in law”, citing Eya V. Olopade (2011) LPELR-1184(SC).
He also argued that the said Order of COA Owerri is not one on the merit of his Appeal, though it can qualify as a final Order to which he is entitled to appeal against by virtue of our extant laws, as he cannot go back to the same Court to challenge or change it, because COA Owerri having declined jurisdiction over his case as presented to it, has in law become functus officio Alor & Anor. V. Ngene & Ors. (2007) LPELR-431(SC); that COA Owerri wrongly determined his right, and the only option open to him in pursuit of his right is this Appeal; and that the exercise of his constitutional right of appeal cannot be held to be an abuse of Court process.
He further argued that his claim in Appeal No. SC/739/2016 was that fourth Respondent committed abuse of Court process in the Suit leading to the Appeal Nos.
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SC/717/2016 and SC/719/2016, while his claim in this Appeal, which arose from his earlier in time suit is based on the submission of false information by the third Respondent to second Respondent contrary to Section 31(5) (6) of the Electoral Act 2010, and the fact that the fourth Respondent condemned and rejected the primary election of 8/12/2014, thus, he cannot benefit from the exercise he condemned and rejected.
It is his contention that the position of third Respondent is “misconceived and unsupported in law, logic and in fact, going by the abundance of legislative enactments and case laws” and for a better understanding of the true state of the Appeals, he argued:
a) Although the Judgment in SC/717/2016, SC/719/2016 and SC/739/2016 were consolidated, however in the Judgment it was decided that –
-At the hearing of the three Appeals it was particularly agreed that Appeal No. 719/2016 shall abide by the decision in Appeal No. SC.717/2016. I so order”
b) The decision in SC/717/2016 do not bind SC/739/2015 as they are cases of different causes, issues and reliefs, though of the same Parties;
c) In SC/717/2016, the main issue presented
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by the 4th Respondent and determined by this Court was the non-payment of tax as and when due by the 3rd Respondent, the failure to prove his case arose from paucity or fact of evidence adduced by the 4th Respondent herein and Appellant in SC/717/2016 in accordance with the principles of proof;
d) In SC/739/2016 the issue that he presented, which was determined by this Court was whether the suit of the 4th Respondent herein, who was 1st Respondent therein, was not an abuse of Court progress regarding the fact that his (Appellant’s) Suit No.FHC/OW/CS/191/2015 Sir Friday Nwanozie Nwosu v. PDP & 3 Ors, which later became Appeal No. CA/OW/190/2016, and is now Appeal No. SC/693/2017 was earlier in time with the 4th Respondent herein also as a Defendant;
e) The relief he sought in Appeal No. SC/739/2016 was for the dismissal of the 4th Respondent’s case for being an abuse of his earlier instituted Suit No. FHC/OW/CS/191/2015, which later became Appeal No. CA/OW/190/2016 and is now Appeal No. SC/693/2017;
f) This Court dismissed his Appeal No. SC/739/2016 on the ground that he and 4th Respondent having participated in the said Governorship primary
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election in question have separate and independent rights of action pursuant to the said Section 87 (9) of the Electoral Act 2010, and that none of their respective Suits can abuse the other, hence that they can pursue their reliefs sought independently;
g) His principal relief in this Appeal is predicated on the 3rd Respondent presenting false information to INEC in his Form CF001 and other documents in support of his nomination contrary to Section 31 (5)(6) of the Electoral Act 2010 (as amended; and that –
h) In the consolidated Judgment of this Court in the said SC.717/12015, SC/719/2015 and SC/739/2016, this Court decided inter alia that-
(i) SC/719/2016 shall abide the Judgment in SC/717/2015.
(ii) SC/717/2016, which binds SC/719/2016, is not an abuse of Court process in his CA/OW/190/2016, then pending at the COA Owerri, which now gave rise to this Appeal No. SC/693/2016.
(iii) He, Appellant, needed not to have even applied and be joined in the said fourth Respondent’s Suit that gave rise to SC/717/2015 and SC/719/2015 since he had earlier on instituted his own action (this Appeal) first before the fourth Respondent.<br< p=””
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(iv) He, Appellant, should rather pursue the reliefs he had sought in his first in time Suit (which was then pending at the COA Owerri) and has now given rise to this Appeal No. SC/693/2017.
(v) Pursuant to Section 87(9) of the Electoral Act 2010 (as amended), he and the fourth Respondent, having participated as Aspirants in the 1st Respondent’s Governorship Primary Election of 8/12/2014, which conduct is being complained about by each of them, that they have rights of action separate and independent of the other.
(vi) The fourth Respondent’s claim in SC/717/2016 and SC/719/2016 (CA/A/390 and 390A/2016) (FHC/ABJ/CS/71/2016) was dismissed for paucity or the lack of evidence in proof of his claim that the third Respondent herein did not pay his taxes as and when due.
(vii) The Respondents cannot ignore those decisions and turn round to plead estoppel and/or abuse of Court process in this Appeal, which had earliest in time begun before the consolidated Appeals, as Suit No. FHC/OW/CS/191/2016, and so, it cannot be an abuse of Court process neither will the doctrine of estoppel catch up with it.
To separate the wheat from the chaff, it is the
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third Respondent’s contention that this Appeal is an abuse of Court process because the Parties, Issues, facts and subject-matter are all the same with the Appellant’s earlier Appeal; and because this Appeal is “spent following the determination of the Appellant’s earlier Appeal.
The Appellant’s position is that the issues in both Appeals are not the same, and since this Court held in the earlier Appeal that as an “aspirant in the terms of Section 87(9) of the Electoral Act, he had every right to pursue his own Appeal, this Appeal cannot be regarded or treated as an abuse of the process of this Court.
What is an abuse of Court process First off, it is settled that 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 – see A.G., Anambra State V. UBA (2005) 15 NWLR (Pt. 974) 44 SC, Arubo V. Aiyeleru (supra) and Saraki V. Kotoye (supra) where this Court per Karibi-Whyte, JSC. aptly observed 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”.
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The bottom line is that an abuse of Court process is where a litigant chooses to use the Legal process improperly to annoy and embarrass another through the filing of multiple actions in one or several Courts against the same Parties and on the same Issues – see Umeh & Anor V. Iwu & Ors (2008) 8 NWLR (Pt. 1089) 225 SC.
In that case, Umeh & Anor V. Iwu & Ors (supra), this Court per Chukwuma-Eneh JSC, painted a clear picture of what it means –
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 obviously lacking in bona fide 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 – (i) A multiplicity of suits (ii) between the same opponents (iii) on the same subject matter and (iv) on the same issues. All these pre- conditions are mutually inclusive as they are conjunctive.
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In this case, the Appellant is not contesting the fact that Parties in this Appeal are the same as in his earlier Appeal No. SC.739/2016. However, he insists that the Issues in both Appeals are different.
In considering Appeal No. SC.717/2015, which binds the sister Appeal No. SC.719/2016, M. D. Muhammed, JSC, stated as follows-
Appellant’s claim – – is two pronged – – he asserts, 1st Respondents participation in 2nd Respondents primary election – – and subsequent nomination as the Partys flag bearer – – without lawful personal income tax certificate and/or any lawful exemption from the payment of the tax constitutes a breach of Article 14 (a) in Part IV of 2nd Respondent’s (PDP) Electoral Guidelines and Constitution. – – – The 2nd leg of the Appellant’s claim – – – he contends that quite apart from the breach of 2nd Respondent Constitution and Electoral Guidelines occasioned by non-availability of 1st Respondent’s valid Personal Tax Certificate at the time of the primary election, the false information supplied by the 1st Respondent regarding his Personal Income Tax in INEC Form CF001 duly completed and signed by him, also vitiates his candidature
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in 2015 Abia State Gubernatorial Election – – – On the Court’s positive determination of the foregoing issues, the Appellant as Plaintiff prayed the trial Court several declaratory and injunctive orders to disqualify the 1st Respondent from being the 2nd Respondent’s flag bearer at the 2015 Abia State Gubernatorial Election and, being the first runner up in the Partys primary election, to declare him the 2nd Respondents lawful flag bearer in the election.
To be clear, the third Respondent and Appellant in this Appeal and SC.739/2015 were the first and fourth Respondents respectively in Appeal No. SC.717/2016. While considering SC.739/2016 in the same consolidated Judgment, M. D. Muhammad, JSC, observed –
Dissatisfied by the outcome of the Primary Election, the Appellant commenced Suit No. FHC/OW/191/2015, challenging the qualification of the 3rd Respondent to participate in and be nominated the Partys flag bearer by virtue of the 2nd Respondent’s Primary Election that held on 8/12/2014. The Appellant’s contention in the Suit is that the 3rd Respondent presented false tax clearance, income tax receipts and information in the
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Affidavit in support of his personal particulars submitted to INEC, 4th Respondent herein. Having presented these false documents which stand in breach of Article 14 of the PDP Primary Election Guidelines 2014 the 3rd Respondent stands disqualified from contesting the 2nd Respondent’s Primary Election, It is apparent that Appellants claim is on all fours as the claim pursued separately by the Appellant in Appeal No. SC.717/2016 by virtue of the latters Amended Originating Summons.
There it is; this Court clearly stated in Appeal No. SC.739/2015 that his claim in the Suit filed at FHC Owerri “is on all fours as the claim pursued separately by the Appellant in Appeal No- SC.717/2016”, and juxtaposed with the comment in SC.717/2015 that Appellant therein prayed the trial Court to disqualify the third Respondent herein and to declare him the second Respondent’s flag bearer, which this Court flatly refused to do, it follows that the Appellant, who also made the same prayer, will have to suffer the same fate.
This is the point made by the third Respondent that even if the Issue resolved by this Court in Appeal No.
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SC.739/2015 affirmed the Appellant’s right to pursue his own Appeal, having determined the main claim in his favour, Appellant ought to have backed off.
In arguing as he did, the Appellant closed his eyes to the fact that his ultimate goal in pursuing this Appeal is to have this Court disqualify the third Respondent and replace him as the Governor of Abia State. One of the reliefs he sought at the FHC Owerri is for an Order compelling and directing second Respondent to accept, deal and recognize him as the PDP flag bearer and governorship candidate and replace the name of the third Respondent with his name in its list of gubernatorial candidates in the 2015 Election.
Then in Appeal No. CA/OW/190/2015, the Appellant prayed COA Owerri to set aside the Judgment of FHC Owerri against him, and order second Respondent (INEC) to withdraw the certificate of Return it had issued to the third Respondent, and issue him with a fresh certificate of Return as the elected Governor of the State.
In this Appeal, the Appellant is praying this Court to invoke its powers under Section 22 of the Supreme Court Act and grant the same reliefs – direct INEC to withdraw
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the Certificate of Return it issued to third Respondent and issue Appellant a fresh Certificate “as the duly elected Governor of Abia State by virtue of the said April 2015 Governorship election held in Abia State or how so even cause the Appellant to be presented for swearing in to office as the duly elected Governor of Abia State. He is also praying for –
An order directing the Chief Judge of Abia State or President of the Customary Court of Appeal of Abia State or any other chief Judge in the Federal Republic of Nigeria to swear in the Appellant as the Governor of Abia State.
What does this say In asking this Court to look into the same Issue of qualification or non-qualification of the same third Respondent on the same grounds as canvassed in that Appeal No. SC.717/2016, the Appellant is praying this Court to review or sit on appeal over its earlier decision that was settled in favour of third Respondent.
I cannot put it better than Agbo, JCA, put it in the Ruling of the COA Owerri delivered on 2/2/20l5, which hits the nail on the head:
Any attempt to continue with the hearing of this Appeal will not only scandalize the Judicial system but will
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do violence to the principle of stare decisis and create avoidable judicial anarchy.
The third Respondent used the word “spent. Surely, “something that is spent has been used so that it no longer has any power or effectiveness” – see Cambridge Dictionary. The Appellant’s claim in the Suit filed at FHC Owerri that led to this Appeal, and which is on all fours as the claim” in Appeal No. SC.717/2016 is in fact spent.
This Court affirmed the decision of COA Abuja setting aside the disqualification of third Respondent in Appeal No SC.717/2017. In effect, it upheld his qualification to contest the said Primaries, and ultimately his election as Executive Governor of Abia State.
The third Respondent’s Objection is upheld, and this Appeal No. SC.693/2017 is hereby, dismissed. The Appellant is ordered to pay costs of One Million Naira to each one of the four Respondents.
SC.693/2017
