By Akintayo Balogun Esq.
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The ongoing leadership crisis rocking the Peoples Democratic Party (PDP), has left the party members and the general public in some sort of dilemma. Unfortunately, the manner in which ex parte Orders have been emanating from various high courts of coordinate jurisdiction in respect of the leadership tussle gives a lot of concern, not just in respect of PDP, but also in respect of the Anambra Gubernatorial election. The trend being allowed by the courts, is becoming a precarious precedence that has the likelihood of reducing the judiciary to a cheap and twistable weapon in the hands of litigants and particularly, politicians, rather than maintaining its sanctity and appellation in the interest of justice, equity and fairness.
On Monday, 23rd August, 2021, news filtered in that a High Court of Rivers State had granted an Order of Interim Injunction, restraining Prince Uche Secondus from parading himself as the National Chairman of the Peoples Democratic Party (PDP). The said injunction was granted by Hon. Justice O. Gbasam of the Degema judicial division, sitting in Port Harcourt, Rivers State. The said suit, with Suit No: PHC/2183/CS/2021, was instituted by one Ibeawuchi Ernest Alex, Dennis Nna Amadi, Emmanuel Stephen and Umezirike Onucha against Prince Uche Secondus as 1st Defendant and the PDP as 2nd Defendant. The said application was heard and determined ex parte.
While we were still trying to understand the import of the shocking interim injunction that had left the vice chairmen of the party scrambling to act as the interim Chairman, then came another Ruling on the Thursday, 26th of August, 2021, from the High Court of Kebbi State, wherein the court had granted an Order for the Stay of Execution of the Ruling in Rivers State that had removed Prince Secondus from functioning as the National Chairman of the PDP. The said Order for stay of execution was granted by Hon. Justice Nusirat I. Umar, of the Kebbi State High Court of Justice. The Suit No: KB/HC/M.171/2021, was instituted by Yahaya Usman, Abubakar Muhammad, and Bashar Suleman, against Prince Uche Secondus as 1st Defendant and the Peoples Democratic Party as 2nd Defendant. This application was also heard and determined ex parte.
We had thought that the immediate intervention of the Board of Trustees and serving Governors of the party would calm all nerves and bring an end to the Rulings emanating from various courts. They, being members of the National Caucus of the party, had called for calm and had proposed a National Convention to be held on 30-31 October, for the purpose of electing new officials of the National Working Committee. The decision of the National Caucus was subject to the adoption and ratification of the National Executive Committee, NEC of the party. The NEC was billed to have its meeting on Saturday, 28th August, 2021. However, on Friday, 27th August, 2021, a Cross Rivers State High Court, sitting in Calabar, coram, Hon. Justice Edem Kooffreh, granted another ex parte Order, restraining Prince Uche Secondus from parading himself as PDP National Chairman. The Order also banned him from resuming office as PDP National Chairman or visiting the Party’s National Secretariat.
The crisis in the party is not the focal point this legal opinion. The legal issues created by these judicial pronouncements as relating to courts of coordinate jurisdiction, making interim orders, orders for stay of execution and counter orders, in respect of the same subject matter, gave rise to this legal opinion. This legal opinion is written with utmost respect to the Honourable Justices of the various courts that have delivered the various Rulings and all Counsel in the suits.
Forum shopping and multiplicity of action by litigants and legal practitioners.
With utmost respect to Counsel to the Plaintiffs in the suit instituted in Kebbi and Cross Rivers States, they did not act appropriately and professionally by instituting these actions. These only amounts to forum shopping and multiplicity of actions, leading to an abuse of court processes. They ought to have advised their clients appropriately. The decision to go to another jurisdiction to file an application on similar subject matters, despite its pendency before the Rivers State High Court of Justice, is a professional misconduct that should not be treated with kid gloves.
Furthermore, with utmost respect to the Honourable Justices of the High court sitting in Kebbi and Cross Rivers States, they ought not to have entertained the said applications. This is because it is clear to these Honourable Justices that there are pending cases on the same subject matter at the Rivers State High Court. Their Rulings referred to the pending suits. For example, the ex parte application heard at the Kebbi State High Court was to stay the execution of a court ruling with coordinate jurisdiction. Technically, the implication of what happened in Kebbi State is that the Judge in Kebbi sat on appeal over a decision of a court of coordinate jurisdiction. This ought not to be, most respectfully.
It has been the practice in the Nigerian courts that a court that made an order or delivered a judgment can also stay the execution of the order or the judgment. The only other court that can grant a stay of execution is a higher court. It is only when the judge that made the order or delivered the judgement is retired, elevated or incapacitated that the application for stay of execution can be taken by another judge within the jurisdiction of that particular State and not by a court of coordinate jurisdiction in another State. The Plaintiffs in the Kebbi State suit, simply went to another court to have an order of court stayed. This is a strange practice that should not be condoned at all.
In the case of Cross Rivers, the court again ought not to have granted an ex parte order in that circumstance. The interim application reads thus:
An ORDER OF INTERIM INJUNCTION restraining the 1st Defendant from acting or purporting to act or to parade himself in any manner howsoever as National Chairman of the 2nd Defendant having been restrained from doing so by a court of competent jurisdiction pending the hearing and determination of the motion on notice.”
This means the learned Honourable Justice was aware that there was a suit already pending at Rivers and Kebbi States, which were not yet determined and they are all relating to the same subject matter. This is why it now granted an application to reinforce an Order of a court, pending before another judge. This to say the least, is a strange practice. We humbly submit with utmost respect to the Honourable Justice of the High Court of Cross Rivers State that this ought not to be. The two latter suits ought to have been struck out suo moto, for constituting a multiplicity of action and forum shopping, leading to an abuse of court processes. Technically, what transpired here is that an action that should have progressed from the Rivers State High Court to the Court of Appeal and to the Supreme Court, have been heard by the high courts of Kebbi and Cross Rivers States, virtually all sitting as appellate courts over the decision of the Rivers State High Court.
The Supreme Court on forum shopping and multiplicity of actions
The Supreme Court has severally depreciated the attitude of litigants and counsel on the issue of forum shopping and multiplicity of actions, leading to an abuse of the court processes. The Court of Appeal in the recent Anambra gubernatorial primary elections also depreciated the attitude of Counsel and litigants on forum shopping and called for strong measures against those involved. The Supreme Court in OKOROCHA V. PDP & ORS(2014) LPELR-22058(SC),held per Ogunbiyi, J.S.C., as follows:
“With reference made to the decision in the case of Dingyadi Vs. INEC No. 2 (2010) 18 NWLR (pt. 1224) SC at 154 the terminology, abuse of court process, was held by this court at page 195 in the following connotation per Chukwuma-Eneh, JSC:- “The term abuse of process connotes simply the misuse of court’s process and it includes acts which otherwise interfere with the course of justice. Clearly, the acts include where without reasonable ground a party institutes frivolous and also by instituting of multiplicity of actions or is on a frolic act of forum shopping i.e. seeking for favourable court to entertain a matter. It also includes depriving the court of jurisdiction.”
See also the cases of R-BENKAY NIGERIA LIMITED. v. CADBURY NIGERIA LIMITED (2012) LPELR-7820(SC) and DINGYADI & ANOR V. INEC(2011)LPELR-950n(SC). Similarly, in the case of NICHOLAS CHUKWUJEKU VS PEOPLES DEMOCRATIC PARTY AND 3 ORS (2014) ALL FWLR PART 728 page 887 at PAGES 903-904 PARAS G-B per Honourable Justice Onnoghen (Chief Justice of Nigeria) held as follows:
“The concept of abuse of process involves circumstances and situations of infinite variety though its common feature is the improper use of judicial process by a party in litigation to interfere with the due administration of justice. The abuse may lie both in proper and improper use of the judicial process in litigation, though generally, the term is used in relation to improper use of the judicial process to the annoyance, irritation of the opponent and the effective and efficient administration of justice, such as institution of multiple actions on the same subject against the same opponent on the same issue. To institute an action during the pendency of another one claiming the same reliefs amounts to an abuse of Court process and it does not matter whether the matter is an appeal or not, as long as the previous action has not been finally disposed of. It is the subsequent action that is in abuse of the process of the Court. Where an abuse of process of occurs, the court does not take it lightly as it is not a mere irregularity. It is fundamental vice punishable by dismissal of the offending process”.
Immediate step(s) that the PDP ought to have taken
When an order has been entered ex parte, the rules of all the various courts in Nigeria has made provisions for procedures in setting aside such exparte orders once it comes to the notice of the parties involved. In this case, the applicable law, being Rivers State High Court Civil Procedure Rules. Order 6, Rule 4 of the Rivers State Civil procedure Rules, provides thus:
“Where an interlocutory injunction or order is made ex-parte, the same may discharged or varied by the court at any time pm application made by any person aggrieved thereby, after notice given to the party who obtained the injunction or order.
Several judicial authorities have held to the effect that an order made ex parte can be set aside upon the application of the aggrieved party. The Supreme Court in the case of PROVISIONAL LIQUIDATOR OF TAPP IND. LTD & ANOR. v. TAPP IND. LTD & ORS (1995) LPELR-2928(SC), it was held per WALI, J.S.C, at (P. 45, paras. E-F), on this score thus:
“Where a party is not pleased with the order made Exparte, provisions are provided in the Rules to apply for a variation or discharge of the order made. An ex parte order properly made is always provisional and for a limited period and does not decide the civil rights of the parties involved in the litigation.”
See also the cases of GALLAHER LTD & ANOR v. BRITISH AMERICA TOBACCO (NIGERIA) LTD & ORS (2014) LPELR-24333(CA) and UNIVERSAL TRUST BANK LIMITED AND ORS V. DOLMETSCH PHARMACY (NIGERIA) LIMITED (2007) LPELR-3413(SC).
The party ought to immediately file a motion on notice for setting aside of the order, which will also be heard as a matter of urgency and on application for abridgment of time.
In the event that the court refuses the application to set aside the order made ex parte, the party is now at liberty to either appeal the decision or to file a counter affidavit to the motion on notice filed along with the motion ex parte already granted. This would have been much neater and tidier for the party and for the sanctity of the judiciary.
In conclusion, the courts must do all that is necessary to protect its integrity and appellation with jealousy. The courts cannot allow itself to be tossed around like a game of chess or allow itself to be controlled by the winds of time. It is popularly said that whenever a matter is brought before a court of competent jurisdiction for determination, it is not the parties that are on trial but the judiciary. The judiciary must always come out with its head up high. Additionally, legal practitioners should endeavor to advice their clients appropriately and not to allow the desperation of litigants and especially politicians determine their line and style of practice. Within few years, the politicians you see today will be gone or would have lost political relevance, but the legal profession spans an entire lifetime. The few pleasures and earnings of the moment should not be allowed to put an indelible stain on the profession. There should not be multiplicity of actions in court over the same subject matter. The Federal High Court had adopted the filing of an affidavit of non-multiplicity of action, along with any originating process. This is to curb such abuses. I would not be surprised if in the coming days, we see more courts coming up with ex parte orders. This would only succeed in ridiculing the sanctity and face of the judiciary arm of government in Nigeria. I hope we can get it right.
Akintayo Balogun Esq., LL.B (Hons), BL, LL.M, is a legal practitioner in private practice and based in Abuja, FCT. A prolific writer, public affairs analyst and commentator on national issues.,akinson6@gmail.com.
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