May 25, 2025
Legalpedia Citation: (2010) Legalpedia (SC) 11171 In the Supreme Court of Nigeria Fri Jun 4, 2010 Suit Number: SC. 32/2010 CORAM PARTIES 1. ALHAJI MUHAMMADU MAIGARI DINGYADI […]
CORAM
PARTIES
1. ALHAJI MUHAMMADU MAIGARI DINGYADI 2. DEMOCRATIC PEOPLES PARTY APPELLANTS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
Following the gubernatorial election held in Sokoto on the 14th day of April 2007, the 2nd Respondent who contested under the platform of the Democratic People’s Party (D.P.P) was returned as the winner of the election having scored the highest number of votes cast. The 1st Appellant having however scored the second highest number of votes challenged the election of the 2nd Respondent before the Governorship and Legislative Houses Election Tribunal sitting in Sokoto, on the grounds that the 2nd Respondent was not qualified to contest the election because he had been nominated to contest the election by two political parties that is, the Democratic People’s Party being the party under which he won the election, and the All Nigeria Peoples Party being the party to which the 2nd Respondent belonged. The petition was dismissed and the Appellants appealed to the Court of Appeal, Kaduna where the appeal was allowed and the election nullified. A fresh election was conducted on the order of the court and the 2nd Respondent was again returned the winner. Dissatisfied with the outcome of the election, the Appellants filed a petition before the Sokoto Governorship Tribunal where the petition was dismissed on the grounds that it lacked jurisdiction to interpret the judgment of the Court of Appeal, Kaduna and that the petition was an abuse of court process as the same issue was still pending at the Court of Appeal, Abuja as a pre-election issue. This decision prompted the Appellant to subsequently appeal to the Court of Appeal, Sokoto. An earlier application to the Federal High Court by Originating Summons at the instance of the Appellant praying for the interpretation of the judgment of the Court of Appeal, Kaduna Division was dismissed on the grounds that the court lacked jurisdiction to interpret same, hence an appeal by the Appellants to the Court of Appeal, Abuja Division. While this was still pending, the Appellants filed an application in the Court of Appeal, Abuja for leave to raise fresh issue not raised at the Federal High Court. The application was opposed and the court refused to grant the prayers. The Appellants have appealed to this Court against that ruling.
HELD
Application granted in part
ISSUES
None
RATIONES DECIDENDI
GRANT OF STAY OF PROCEEDINGS – AN IMPORTANT FACTOR TO BE CONSIDERED BEFORE A STAY IS GRANTED IS THE NEED TO PRESERVE THE RES.
“A very important factor in granting a stay is the need to ensure that the Res of the proceedings is preserved as the Res sustains the proceedings, and once it is destroyed the whole proceedings become moribund. In short, if refusal of an order of stay will lead to a destruction of the Res – the proceedings must be stayed. Akilu v. Fawehinmi (No.2) (1989) 2 NWLR pt. 102 pg. 122. Daily Times (Nig.) Plc. v. Magora (1999) 7 NWLR pt. 612 pg. 592 ANAAMCO v. First Marina Trust Ltd. (2000) 1 NWLR pt. 640 pg. 309. United Spinners (Nig.) Ltd. v. Chartered Bank Ltd. (2001) 14 NWLR pt. 732 pg. 195.” PER O. O. ADEKEYE, J.S.C
ABUSE OF COURT PROCESS – MULTIPLICITY OF ACTIONS ON THE SAME MATTER AND BETWEEN THE SAME PARTIES IS AN ABUSE OF COURT PROCESS.
“What constitutes an abuse of court process is a matter of fact which must be established by credible and admissible evidence. It may lie in both a proper and improper use of the judicial process in litigation. The list is inexhaustive but it includes instituting multiplicity of actions between the same parties in a most disturbing manner. The multiplicity of action on the same matter between the same parties even where there exist a right to institute the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the right rather than Hon the exercise of the right per se. Saraki v. Kotoye (1992) 9NWLR (1966) 2 SCNLR 35. Okorodudu v. Okoromadu (1977) _3 SC pg. 21. Ali v. Albishir (2008) 3 NWLR pt. 1073 pg. 94. Umeh v. Iwu (2008) 8 NWLR pt. 1089 pg. 225.” PER O. O. ADEKEYE, J.S.C
STAY OF PROCEEDINGS – A STAY OF PROCEEDINGS WOULD BE GRANTED WHERE AN INTERLOCUTORY APPEAL WILL FINALLY DISPOSE OF THE CASE BEFORE A LOWER COURT.
“The courts had decided that where an interlocutory appeal will finally dispose of the case pending before a lower court, a stay of proceedings will be granted. Arojaye v. U.S.A. (1986) 2 NWLR pt. 20 pg. 101. Obinyiriuka v. Aliche (1991) 4 NWLR pt. 183 pg. 87.” PER O. O. ADEKEYE, J.S.C.
ABUSE OF COURT PROCESS – WHERE THERE ARE MULTIPLICITY OF ACTIONS/ APPEALS BEING PROSECUTED IN THE SAME OR DIFFERENT COURT SIMULTANEOUSLY, THE LATER IN TIME WILL ABATE
“Where an abuse of court process relates to multiplicity of actions/appeals being prosecuted in the same court or even in different courts simultaneously, the later in time will abate. PER 1.T.MUHAMMAD, J.S.C.
DE FOR EASE IN ATTAINING JUSTICE, IT IS NOT MEANT TO BE A CLOG IN THE PURSUIT OF JUSTICE.
“Rules of court are made for attaining justice with ease, certainty and dispatch. They are made for the purpose of obtaining justice by parties in the citadel of justice. They must not be used in the instance of this case as a clog in the wheel of obtaining such justice. Solanke v. Somefun (1974) ALL NLR pt. 1 pg. 141.” PER O. O. ADEKEYE, J.S.C.
EFFECT OF A REFUSAL TO HEAR A PENDING MOTION – A REFUSAL TO HEAR A PENDING MOTION IS A BREACH OF THE RIGHT TO FAIR HEARING
“A refusal of a court to hear a motion pending is a breach of the right to a fair hearing guaranteed under the constitution and an essence of the AUDI ALTERAM PARTEM rule of natural justice.” PER 1.T.MUHAMMAD, J.S.C
RULE OF NATURAL JUSTICE – THE RULE OF NATURAL JUSTICE MUST BE OBSERVED BY THE COURT AT ALL TIMES.
“All Courts including this Court are bound to observe the rule of natural justice in all their proceedings including proceedings in Chambers where parties and their Counsel are not present. This cannot be achieved unless and until all parties are heard or given the opportunity of being heard. See Alhaji Yekini Otapo v. Chief R. O. Sunmonu & Others. (1987) 5 S.C.N.J. 57 also reported in (1987) 2 N.W.L.R. (Pt. 58) 587.” PER M. MOHAMMED, J.S.C.
STAY OF PROCEEDINGS – AN APPLICATION FOR STAY OF PROCEEDINGS CAN ONLY BE GRANTED WHERE IT IS SHOWN THAT THERE EXIST SPECIAL AND EXCEPTIONAL CIRCUMSTANCES.
“Application for stay of proceedings pending appeal can only be granted where special and exceptional circumstances exist. See Akilu v. Fawehinmi (No.2) (1989) 2 N.W.L.R. (pt. 102) 122.” PER M. MOHAMMED, J.S.C
STAY OF PROCEEDINGS PENDING APPEAL – PRESERVATION OF THE RES IS A BASIS FOR GRANTING AN APPLICATION FOR STAY OF PROCEEDINGS PENDING APPEAL.
“Stay of proceedings pending appeal may also be granted where preserving the RES or subject matter of the appeal is the basis of the application to avoid a situation if the appeal succeeds it will not be rendered nugatory. See Kigo (Nig.) Ltd. v. Holman Bros (Nig.) Ltd. (1980) 5 – 7 S.C. 60.” PER M. MOHAMMED, J.S.C
COMPILATION OF RECORDS OF APPEAL – WHERE THE APPELLANT HAS FAILED TO COMPILE THE RECORDS OF APPEAL, THE RESPONDENT HAS THE RIGHT TO APPLY FOR DISMISSAL OF THE APPEAL ON THE GROUND OF LACK OF DILIGENT PROSECUTION.- ORDER 7 RULE 3 OF THE SUPREME COURT RULES
“The law does not provide for compilation of record by the Respondent – where the appellant has failed to compile record, the right available to a Respondent is to apply for a dismissal of the appeal if the appellant is not diligent enough to compile records expeditiously. Order 7 Rule 3 does not give right to a respondent. Where record is compiled, either main record or supplementary all process must be certified.” PER O. O. ADEKEYE, J.S.C
RULES OF COURT – RULES OF COURT ARE MA
RIGHT TO FAIR HEARING – THE RIGHT TO FAIR HEARING IS A FUNDAMENTAL RIGHT WHICH IS GUARANTEED BY THE CONSTITUTION.
“The right to fair hearing is a fundamental constitutional right guaranteed by the Constitution of the Federal Republic of Nigeria, 1999 and a breach of it particularly in trial vitiates such proceedings rendering same null and void.” PER O. O. ADEKEYE, J.S.C
JURISDICTION OF COURT – FACTORS THAT DETERMINES THE JURISDICTION OF COURT
“Before a court can be competent to exercise jurisdiction in respect of any matter it must:-
(a)Be properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or the other.
(b) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction and
(c)The case comes by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. Madukolu v. Nkemdilim (1962) 2 Be NLR 34/ ; A.G Anambra State v. A.G Federation (1993) 6 NWLR pt. 302 pg.692; Saleh v. Monguno (2003) 1 NWLR pt. 801 page 221 .” PER O. O. ADEKEYE, J.S.C.
DECISION OF THE SUPREME COURT – THE SUPREME COURT CANNOT RE-OPEN ANY MATTER ALREADY DECIDED BY IT, EXCEPT IN CERTAIN CIRCUMSTANCES WHERE IT WOULD BE IN THE INTEREST OF JUSTICE.
“Once the Supreme Court in its decision has effectively decided on a matter before it and there is no ambiguity or slip to be corrected it becomes funtus officio of the powers of the court to re-open it. But there are circumstances in which the inherent powers of the court can be involved to take some steps so that the interest of justice will be served. Adigun v. the Secretary Iwo Local Government (1999) 8 NWLR pt.613 pg 30 SC; Ahovo v. African Continental Bank Ltd 2000 6 SC part 1 pg. 27 Okegbe v. Chikere (2000) 7 SC part 1 pg. 106.”PER O. O. ADEKEYE, J.S.C.
STAY OF PROCEEDINGS PENDING APPEAL – CONDITION PRECEDENT FOR A COURT TO ASSUME JURISDICTION TO CONSIDER AN APPLICATION FOR STAY OF PROCEEDINGS PENDING APPEAL
“A condition precedent for a Court to assume jurisdiction to consider any application for stay of proceedings pending the determination of appeal, is the existence of a valid appeal itself.” PER M. MOHAMMED, J.S.C
POWER OF THE COURT TO WAIVE COMPLIANCE WITH THE RULES – THE COURTS HAVE POWER TO WAIVE COMPLIANCE WITH THE RULES OF COURT IN A BID TO DOING SUBSTANTIAL JUSTICE
“The courts have power to waive compliance with the rules in exceptional circumstance when it considers that the interest of justice is of paramount importance. Nowadays, this court has moved away from technical justice to doing substantial Justice.” PER O. O. ADEKEYE, J.S.C
GRANT OF A STAY OF PROCEEDINGS – CONDITION PRECEDENT FOR THE GRANT OF AN ORDER OF STAY OF PROCEEDINGS
“A stay of proceedings presupposes that there is a valid appeal pending, but then such application is not granted as a matter of routine tied slavishly to the filing of an appeal. The applicant must show to exist special and exceptional which have the effect of compelling the court to grant his application. It is a matter of law and facts.” PER O. O. ADEKEYE, J.S.C
ACTION – WHERE THERE ARE TWO SIMILAR ACTIONS BETWEEN THE SAME PARTIES BEFORE THE COURT, THE LATER IN TIME SHALL BE VACATED.
“It is trite law that where two actions of similar or same nature and between same parties and subject matter are being prosecuted concurrently before same court or different courts, it is the later in time that vacates. See: Doma v. Adamu (1999) 4 NWLR (Pt.589) 311; Beneplastic Industries v. Vasilyev (1999) 10 NWLR (Pt.624) 620; Abubakar v. Unipetrol Plc (2002) 8 NWLR (Pt.769) 242 at 253 – H-C; Ikena v. Edjerode (2001) 18 NWLR (Pt.745) 446 at 485 – 486”. PER 1.T.MUHAMMAD, J.S.C
RULES OF COURT – RULES OF COURT MUST BE COMPLIED WITH.
“Where the exercise of a right is circumscribed or limited by a rule of practice, and except where it is satisfactorily shown that compliance with such a rule has been waived, then that rule must be complied with. Court Rules are meant to be obeyed. See: Ezegbu v. FATB Ltd (1992) 1 NWLR (Pt.216) 197; Iroegbu v. Okwordu (1990) 6 NWLR (Pt.159) 643; CCB (Nig.) Plc v. A-G Anambra State (1922) 8 NWLR (Pt, 261) 528.” PER 1.T.MUHAMMAD, J.S.C
SUPREME COURT – DUTY ON THE SUPREME COURT TO ARREST AN UNNECESSARY DRIFT BY ANY PERSON PURSUING A LITIGATION BEFORE ANY COURT(S) AGAINST WHICH A COMPLAINT HAS BEEN BROUGHT TO THE APEX COURT
“The Supreme Court, by virtue of its being the apex court and in exercise of the general powers conferred upon it by the constitution, the Supreme Court Act and the Rules, has a duty to arrest an unnecessary drift by any person pursuing a litigation before any court or courts against which a complaint has been brought to the apex court”. PER 1.T.MUHAMMAD, J.S.C
SETTING ASIDE A JUDGMENT OR ORDER OF COURT – THE COURT HAS INHERENT JURISDICTION TO SET ASIDE A JUDGMENT OR ORDER WHICH IS A NULLITY.
“The law regarding the position of any judgment or order of Court which is a nullity for any reason whatsoever, is that the Court in its inherent jurisdiction is entitled ex-debito justitiae to have that judgment or order set aside on the application of an affected or aggrieved party or even suo-motu by the Court itself. See Ademuluyi & Anor. v. African Continental Bank Limited (1965) N.M.L.R. 24; Obinmonure v. Erinosho (1966) 1 All N.L.R. 250; West African Automobile & Engineering Company Limited v. Ajanaku (1972) U.I.L.R. 335; Skenconsult (Nigeria) Ltd v. Ukey (1981) 1 S.C. 6 and Adegoke Motors Limited v. Adesanya (1989) 3 N.W.L.R. (Pt. 109) 250.” PER M. MOHAMMED, J.S.C.
DECISION OF THE COURT – POWER OF THE APPELLATE COURT TO SET ASIDE A DECISION WHERE IT IS FOUND TO BE A NULLITY
“Where a decision has been found to be a nullity, this court has every power to set it aside. See the case of Mobil Prod. (Nig.) Ltd. v. Monokpo (2003)18 NWLR (Pt.,852) 346 at PP412 – 413.” PER 1.T.MUHAMMAD, J.S.C
NOTICE OF APPEAL – A NOTICE OF APPEAL IS WHAT INITIATES AN APPEAL BEFORE AN APPELLATE COURT.
“The initiating process for an appeal before an appellate court is the Notice of Appeal. The Notice of Appeal contains matter of that appeal is.” PER 1.T.MUHAMMAD, J.S.C
CRITERION OF FAIR HEARING – THE BASIC CRITERION AND ATTRIBUTE OF FAIR HEARING IS FOR BOTH PARTIES TO BE HEARD ON ALL MATERIAL ISSUES. – SECTION 36 (1) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA.
“The basic criterion and attribute of fair hearing include:-
“That the court or tribunal hear both sides and not only in the case before reaching a decision which may be prejudicial to any party in the case but on all material issues in the case. A hearing cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard, present his case or call witnesses. Section 36 (1) of the 1999 Constitution.” Bamgboye v. University of Ilorin (1999) 10 NWLR pt. 622 pg.290; Kotoye v. CBN (1989) 1 NWLR pt. 98 pg 419; Military Governor Imo State v. Nwaunwa (1997)2 NWLR pt. 490 pg. 675.” PER O. O. ADEKEYE, J.S.C
STANDARD OF FAIR HEARING – THE STANDARD OF FAIR HEARING REQUIRES THE OBSERVANCE OF THE RULES OF NATURAL JUSTICE
“The standard of fair hearing requires the observance of the twin pillars of the rules of natural justice – namely:- (a) audi alteram partem, that is hear the other side and (b) nemo judex in causa sua – that is, no one should be a judge in his own cause.” PER O. O. ADEKEYE, J.S.C.
APPEALS FROM ELECTION TRIBUNAL – APPEALS ARISING FROM ELECTION TRIBUNAL IN RESPECT OF GUBERNATORIAL ELECTIONS TERMINATES AT THE COURT OF APPEAL
“An appeal from an Election Tribunal relating to the election of gubernatorial candidates has its final bus-stop at the Court of Appeal.” PER 1.T.MUHAMMAD, J.S.C
STAY OF PROCEEDINGS – THERE MUST BE A VALID APPEAL PENDING BEFORE AN APPLICATION FOR STAY OF PROCEEDINGS CAN BE GRANTED.
“The law is well settled that there must be a valid appeal pending in Court before an application for stay of proceedings pending determination of an appeal can be considered by taking into consideration the substance of the grounds of appeal contained in the notice of appeal. Where the appeal is frivolous or oppressive, the application will be refused. See Olawunmi v. Mohammed (1991) 4 N.W.L.R. (Pt. 186) 516; National Bank of Nigeria Ltd. v. Nigerian External, Telecommunications Ltd (1986) 3 N.W.L.R. (Pt. 31) 667 and General Oil Ltd. v. Oduntan (1990) 7 N.W.L.R. (Pt. 163) 423.” PER M. MOHAMMED, J.S.C
PROCESSES BEFORE THE COURT – THE COURT IS ENJOINED TO FIRST TREAT PENDING PROCESSES BEFORE IT PROCEEDS TO DETERMINE THE APPEAL TO ITS FINAL CONCLUSION
“It would be wrong of a court to proceed to treat an appeal to its final conclusion when other processes are pending.” PER 1.T.MUHAMMAD, J.S.C
COURT – IT IS THE DUTY OF THE COURT TO PRESERVE THE SUBJECT MATTER OF LITIGATION BEFORE IT.
“A court has a duty to preserve the subject-matter Res of a litigation before it. Kigo v. Holman Bros (1980) 5-7 SC pg. 60. Ojukwu v. Military Governor of Lagos State (1985) 2 NWLR pt. 10 pg. 806. Ivory Merchant Bank Ltd. v. Partnership Investment Ltd. (1996) 5 NWLR pt. 448 pg. 363.” PER O. O. ADEKEYE, J.S.C
POWERS OF THE SUPREME COURT – THE SUPREME COURT IS EMPOWERED BY THE SUPREME COURT RULES 2002(AS AMENDED) TO GIVE ANY JUDGMENT AND MAKE ANY ORDER AS REQUIRED IN A CASE
“The Supreme Court Rules, (2002 as amended) have conferred on the Supreme Court general powers to give any judgment and make any order which ought to have been given or made and to make such further or other order as the case may require. The court shall have power to make order by way of injunctions or the appointment of a receiver manager and such other necessary orders for the protection of property or person pending the determination of an appeal to it even though no application for such an order was made in the court below”. PER 1.T.MUHAMMAD, J.S.C
CASES CITED
STATUTES REFERRED TO
Supreme Court Act, Cap. S15 Laws of the Federation of Nigeria, 2004Supreme Court Rules, 2002 (as amended)