By Awa Kalu
It is now in the public domain that the Supreme Court delivered yet another ruling in the matter listed before it as SC.32/2010 – Alhaji Muhammadu Dingyadi & Anor. v. Independent National Electoral Commission & 2 Others. For purposes of clarity, the appellant in the case was the governorship candidate of the Democratic Peoples Party (DPP) in the Sokoto State governorship election held in April, 2007 while the 2nd respondent, Aliyu Wamakko was his opponent and flag-bearer of the Peoples Democratic Party (PDP). It is also in the public domain that the 1st respondent (INEC) declared Aliyu Wamakko the winner of the election and is therefore the incumbent governor of Sokoto State.

For the avoidance of doubt, the ruling in the above matter was in the main, meant to determine whether the appellants had lawfully discontinued one of the many appeals that were filed in the course of contesting the lawfulness of the return of Aliyu Wamakko as the winner of the said governorship election.

To make the ruling of the apex Court more intelligible, it is best to rely on the summation provided by Hon. Justice Muhammed, JSC, in the Court’s earlier ruling delivered on 4th June, 2010 and presently reported as Alhaji Muhammadu Dingyadi & Anor. v. Independent National Electoral Commission & 2 Others [2010] 4-7 SC (Pt. 1) 76.

His Lordship surmised inter alia, that: “Yes, it is true that one Appeal was filed by the Appellants/Respondents and is pending at the Court of Appeal, Abuja division, in Appeal No. CA/A/276/08.

There is also another one filed by the same Appellants/Respondents and is pending at the Court of Appeal, Sokoto Division, in Appeal No. CA/S/EP/GOV/10/09.

As has been through the analysis rendered earlier in the Ruling, the Appeal at the Court of Appeal, Abuja division is on the decision of the Federal High Court, Abuja, whereas the Appeal at the Court of Appeal Sokoto Division, from the documents before this Court, is on the decision of an Election Petition Tribunal, Sokoto.

The two adjudicating bodies, that is, the Federal High Court and the Election Petition Tribunal are two independent bodies created of course, by the same Constitution; empowered by the same Constitution and other relevant statutes. They decide different matter and their Jurisdictions differ. Ordinarily, a matter before one of these adjudicating bodies may not be presented for a decision before the other as they are polls apart and operate, rather, in parallel dimensions.

Any decision of the Federal High Court is appealable up to the Supreme Court.  An Appeal from the Election Tribunal relating to the Election of gubernatorial candidates has its final bus-stop at the Court of Appeal.

However, the bone of contention of the Learned Counsel for the 1st Respondent/Applicant and the Learned Senior Advocates of Nigeria for the 2nd and 3rd Respondents in this matter is not from where the appeal/process to the Court or Tribunal emanated but whether the law and practice in our adversarial system of adjudication allows for multiplicity of actions/Appeals in either same Court/Tribunal or in different Courts/Tribunals between same parties pursuing same subject matter simultaneously.

This is what authorities call multiplicity of actions which usually gives rise to an abuse of Court Process.”
Taking the background provided above into account, the relevant question which the Supreme Court had to answer was whether the apex Court was suitably positioned to make a consequential order having regard to the fact that it had found as a fact in its ruling dated 4th June, 2010, that the appeal pending before the Sokoto Division of the Court of Appeal constituted an abuse of the process of that Court. In the interest of the layman, “An abuse of the Court’s process has been defined in CBN v. Ahmed, per Ogundare, J.S.C., quoting Karibi-Whyte, JSC., as (the concept of abuse of judicial process) is imprecise. It involves circumstances and situation of infinite variety and conditions.

Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. It is recognized that the abuse of the process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice.

This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issue.” The Court further noted that “…in the case of Arubo v. Aiyeleri (1993) 3 NWLR (Pt. 280) 126 at 142 and 146, “abuse of Court process” is defined simply to connote that the process of the Court has not been used bona fide and properly.

It also connotes the employment of judicial process by a party in improper use to the irritation and annoyance of his opponent and efficient and effective administration of justice. The nature and characteristic of an abuse of Court process were explicitly set out by this Court in the case of Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at Page 188)189, where the Court stated: “It is recognized that the abuse of the process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice.

This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues”.

Having placed in context what the abuse of a Court’s process connotes, the Court held that it could make a consequential order for the purpose of giving effect to its finding that the two appeals, namely, those pending simultaneously in Kaduna and Sokoto Divisions of the Court of Appeal (between the same parties and on the same subject matter) constitutes an abuse of process by multiplicity of actions.

The apex Court held that it would make the consequential order on five grounds as follows: (i) because it could vacate Appeal No. CA/S/EV/GOV/10/2009; (ii) that the appeal in the Sokoto Division could not “come within the ambit of the substantive jurisdiction of the Court of Appeal as an election petition; (iii) the apex Court “by section 22 of the Supreme Court Act has been conferred with enormous powers to adjudicate over the real matter in dispute between the parties before it”.

“In this regard”, the Court further explained, “it exercises its regular and lawful powers under its inherent jurisdiction on the backdrop of achieving a just, equitable and expeditious dispensation of all matters before it and so it is positioned to grant the relief sought particularly here that the appellants have by indulging in vexatious acts of multiplicity of actions and forum shopping have depicted themselves as determined to flagrantly abuse Court process”; (iv) the consequential order was within the Court’s competence; and (v) “where there is an element of public policy in the matter, requiring urgent securing of the public confidence in the administration of justice which should not be undermined at any costs.

The peculiar facts here vis-à-vis the subject matter warrant making a consequential order to arrest drifting into judicial anarchy, which is eerie…”

It is for the above reasons that the Supreme Court felt emboldened and justified to terminate an appeal pending before another Court, i.e. the Court of Appeal. This is the controversial aspect of the decision and it is difficult to fathom whether the discerning public would in the long run appreciate the niceties of this ruling.