New perspectives on Supreme Court’s dismissal of the Sokoto guber case

The ruling, on November 26, 2010, by the Supreme Court of Nigeria dismissing one of the two appeals maintained by Dingyadi (DPP) against Governor Wammakko (PDP) has generated a helluva of public comments – some for; many others against. In the main, the Supreme Court made three orders, two in favour of Dingyadi, and one in favour of Wamakko; or put another way: the Supreme Court held against Wamakko on two of the causes (or applications) pending before it, and held against Dingyadi in one.

More particularly, the Supreme Court held against Wamakko when it refused his submissions to deny Dingyadi’s request to withdraw his interlocutory appeal of the refusal of (Abuja) Court of Appeals to grant Dingyadi leave to raise ‘fresh issues’; and going further to advantage Dingyadi, the Supreme Court allowed his said appeal before the (Abuja) Court of Appeals to stand (or proceed to judgment). Those are two clear victories for a Dingyadi that, despite many setbacks, has demonstrated an amazing proclivity for maintenance of several and simultaneous legal actions against Wamakko. Yet, Dingyadi still complains; and as some accounts had it, he has arrayed an army of critics (both lay and learned) to levy vituperations against the Supreme Court.

Conversely, Gov. Wamakko, ever so stoic, noble and respectful of the nation’s judiciary, has not complained as most litigants would if they lost two cases in one day, in one breath.

To be sure, as against Dingyadi and of which he is complaining about is the concurrent ruling that he cannot be allowed free reign to maintain another appeal, bearing the same issues, before the (Sokoto) Court of Appeals; and which appeal was later in time to the one filed at the (Abuja) Court of Appeals. That, the Supreme Court, reasoned would amount to ‘abuse of process’; is ‘vexatious’, ‘contemptuous’ ‘duplicative’, amounts to ‘forum-shopping’ and is ‘against public policy’; plus more damning descriptions. One of the Justices was so aghast that he called it ‘forum-prostitution’; and another feared that Dingyadi was intent on foisting ‘judicial anarchy’ in the land (or in Sokoto) if the apex court didn’t do what it had to do to stop him.

The history of the many layers of the cases brought by Dingyadi against Wamakko since 2007 is so laid bare in the public domain that repeating it here will be ad infinitum. It is enough to merely state that Dingyadi came to this pass because he has refused to accept two electoral victories by Wamakko, many more court victories by Wamakko, and the general inclination of the people of Sokoto and other well-meaning Nigerians to come to closure on this matter. From a spree of praying inferior courts to interpret the judgment of superior courts, to a slew of duplicative actions before High Courts and Courts of Appeals, Dingyadi came to the point where his serial forum shopping even challenged the collective integrity of Nigeria’s Federal Court of Appeals and stoked some restiveness in Sokoto.

Yet, considering that Dingyadi is still ‘appealing’ to the court of public opinion (because he has no higher court to go to), one suspects that the real purpose is to undermine the integrity of the Supreme Court or ignite public odium against it and its Justices. So, before anyone believes what he is hearing from these lay and learned men presently hauling all manners of attacks on the Supreme Court, we need to look to other lands to see whether there are some cases that can support the ruling Nigeria’s Supreme Court made in the case at issue.

In the United Kingdom (from where much Nigeria’s ‘common law’ legal system came), the principles that usually lead to a finding of abuse process were enunciated in Johnson v. Gore Wood & Co by Lord Bingham. He said, and I paraphrase that: ‘the underlying public interest (or public policy) is that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the concern for efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim in later proceedings may, without more, amount to abuse. Properly applied, the rule has a valuable part to play in protecting the interests of justice’.

Talking of later claims, Dingyadi certainly brought many of those, counting from the initial ones in 2007 and culminating in the two identical appeals he laid before Abuja and Sokoto. That also means that Wamakko was, before the instant ruling, being twice vexed in the same matter. And there is more, because if you tally Dingyadi’s interlocutory appeals, you can also say that Wamakko was being vexed more than twice.

The inherent power of a higher court to dismiss for abuse of process was further recognized in Connelly v. DPP [1964] A.C. 1254, where Lord Reid held that the court had “a residual discretion to prevent anything which savors of abuse of process”, and Lord Devlin concurred, stating that courts have “an inescapable duty to secure fair treatment for those who come or are brought before them”.

And in Mills v. Cooper [1967] 2 Q.B. 459, Lord Parker stated that “every court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and abuse of process of the court”. Lord Justice Diplock expressed his agreement with this view (see [1967] 2 Q.B. 459, at 470) and was cited with approval by Lord Edmund-Davies in DPP v. Humphreys [1977] A.C.1, at 52-53.

Taking the rationale in Connelly and the cases adopting it, you will agree that those claiming that the ‘abuse of process’ ruling meant that the Supreme Court ‘unconstitutionally’ asserted jurisdiction over a Governorship Election Petition are unmindful that the Nigerian Supreme, regardless of any other provision to the contrary, still retains ‘residual discretionary jurisdiction’ under the common law and Section 295 (and more) of the 1999 Constitution. I had addressed this issue in a previous treatise on this matter, titled “Sokoto guber: Wamakko has made a case for Supreme Court jurisdiction”, widely published by Nigerian and foreign newspapers at the time this matter initially broke at the Supreme Court and generated a similar fuss that we are again seeing today.

Back to England and to a more recent case, Lord Justice Neil, in R. v. Beckford [1996] 1 Cr. App. R. 94 stated that “the constitutional principle which underlies the jurisdiction to stay proceedings (for abuse of process) is that the courts have the power and the duty to protect the law by protecting its own purposes and functions”.

I have taken pains to cite these cases in the hope that Dingyadi and those presently pursuing the Supreme Court on his behalf will care to read them; and if I might add, be persuaded to walk a straight path.

If they need more foreign authorities for what Nigeria’s Supreme Court did, they should look to the ratio established in Walbrook Trustees (Jersey) Ltd & Others v Fattal & Others [2009] EWCA Civ 297. In this case, the court considered a ‘specific type of abuse of process, namely the bringing of successive actions in respect of the same subject matter’, such as Dingyadi certainly did when he filed his second appeal at the Sokoto Division of Court of Appeals while his appeal of the same issues was still pending at the Abuja Division of the Court of Appeals.

Additionally, it was held in Walbrook that a ‘court which has been presented with an application to strike out for an abuse of process must essentially consider the public interest in ensuring that there is finality in litigation and that a party should not be ‘stung twice' in the same matter. There is no better illustration of Wamakko being ‘stung twice’ than allowing Dingyadi the unfettered liberty of maintaining two appeals of the same issues in two sister Courts of Appeals – in Abuja and Sokoto.

The foregoing is where the law on abuse of process presently stands in England; and it is as supporting of Nigeria’s Supreme Court, as it also represents an unimpeachable rebuttal of the body of arguments so far advanced against the instant ruling. Keep in mind that, before Nigeria became a republic in 1963, appeals were taken from the Nigerian Supreme Court to the Privy Council in England. Had this situation not changed and Dingyadi proceeded to the Privy Council, he will surely hit a brick wall on the tenor and reach of the cases cited above.

And if you look further, you will find that the same sentiments were echoed in other Commonwealth jurisdictions, notably the Canadian decisions in R v Young (1984) 40 CR (3d) 289 and R v Hewitt (1985) 2 SCR 128, which held that stay or dismissal should, in the words of CJ Dickson, be granted where ‘compelling the defendant to endure the rigors of the litigation would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency’. The same principles were adopted and expanded in Campbell v. Canada, 2009 FC 30, [2009] 4 F.C.R. 211, in which it was held with much approval that ‘the multiplicity of actions commenced by the plaintiffs amounts to an abuse of process’.

What led to the ruling in Campbell was that after having commenced an action in Saskatchewan (a province of Canada), the plaintiffs commenced the same action in Ontario (another province of Canada). Defendants sought dismissal of one of the actions on the argument that maintaining identical proceedings in two jurisdictions was an abuse of process. It should be noted that the courts in Saskatchewan and Ontario are of equal jurisdiction, analogous to the Courts of Appeal in Abuja and Sokoto.

In its ruling in Campbell, the Canadian Supreme Court observed that ‘for the same reasons courts have recognized the bringing of multiple actions in a single jurisdiction as an abuse of process, the bringing of multiple actions in two or more jurisdictions may also be an abuse of process. In such a situation, “the courts are being used in a manner which serves no proper purpose or which is vexatious or oppressive.” In the course of its analysis and ruling that abuse of process was present, the Court observed that ‘although it had not been raised by the plaintiffs, abuse of process flowed from the Ontario action rather than from the Saskatchewan action since the Saskatchewan action was started first’.

The foregoing Canadian case, more than any other foreign case cited here, fully comports with and sustains the ruling in Dingyadi versus Wamakko, in that the Supreme Court held similarly that the later appeal (in Sokoto Division of CA) must abate but it still allowed the first appeal (in Abuja Division of CA) to stand and proceed to closure before the said Court of Appeal.

Moreover (and I repeat) that if appeals from Nigeria can still lie to the Privy Council in England as was the case, and Dingyadi proceeded to go that far (as is typical of him); the Privy Council would have summarily affirmed Nigeria’s Supreme Court on all fours. It goes without saying, therefore, that CJ Katsina-Alu’s Supreme Court is in order with her sister Courts in the Commonwealth and even beyond. You might also add that none of the five Justices empanelled to hear this matter dissented. It was an unanimous decision. You can’t beat that.

So, why is Dingyadi still complaining if there is nothing in the Sokoto Division of the Court of Appeals that is so attractive to him?

Aloy Ejimakor wrote in from alloylaw@yahoo.com 

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