On validity or otherwise of court processes filed by counsel after being debriefed by party to an action: An insight into the Supreme Court laudable decision in NYESOM WIKE EZENWO V. AWARA BIOKPOMABO FESTUS & OTHERS. Citation: [2020]16 NWLR PT.1750 AT 324. Courtesy: Moruff O. Balogun Esq.

Summary of Facts:
The appellant contested in the Rivers State Governorship Election held in 2019 as the candidate of the Peoples Democratic Party (PDP), the 4th respondent. The 1st respondent, as candidate of the African Action Congress (AAC), the 2nd respondent also contested in the election with other candidates. And the appellant was declared winner of the election by the Independent National Electoral Commission (INEC), the 3rd respondent.

Subsequently, a joint election petition against the return of the appellant as candidate elected was filed on behalf of the 1st and 2nd respondents at the governorship election tribunal (the tribunal) by Tawo E. Tawo, SAN & Co., Legal Practitioners. However, on 21st May 2019, the 2nd respondent filed a notice of change of counsel from Tawo E. Tawo, SAN & Co. to H. A. Bello, Esq. on the ground that its consent was not sought before the petition was filed by Tawo E. Tawo, SAN & Co.

The 1st respondent and his counsel, Tawo E. Tawo, SAN & Co., vehemently resisted the change of counsel by counter affidavits. They also filed an application on behalf of the 1st and 2nd respondents to set aside the notice of change of counsel filed by H. A. Bello, Esq. on behalf of the 2nd respondent.

On 22nd June 2019, the tribunal dismissed the 1st respondent’s application. The tribunal affirmed the right of the 2nd respondent to counsel of its choice and the right of 2nd respondent to change its counsel. Relying on the notice of change of counsel filed, the tribunal held that Tawo E. Tawo, SAN effectively ceased to be counsel to the 2nd respondent on 21st May 2019 and that effective from that day, H. A. Bello, Esq. took over as counsel for the 2nd respondent. In addition, the tribunal held that all the processes earlier filed by Tawo E. Tawo, SAN & Co. before H.A. Bello, Esq took over as counsel for the 2nd respondent could no longer be used by the tribunal.

Later, the 1st respondent through his counsel, Tawo E. Tawo, SAN & Co filed an application to regularise the processes already filed on behalf of the 1st and 2nd respondents jointly, and to have them deemed as processes filed only by the 1st respondent. The appellant and the 3rd and 4th respondents opposed the application. They also filed an application that the processes filed by Tawo E. Tawo, SAN & Co. on behalf of the 1st and 2nd respondents jointly after becoming aware, on 21st May 2019, of the notice of change of counsel were incompetent and void.
The tribunal delivered a composite ruling on the two applications. It held that the processes filed by Tawo E. Tawo, SAN & Co. for the 1st and 2nd respondents after the firm was regularly debriefed on 21ST May 2019 by the 2nd respondent were incompetent and void.

Consequently, the 1st respondent filed an application for leave of the tribunal deeming the processes filed by Tawo E. Tawo SAN & Co. on behalf of the 1st and 2nd respondents to be adopted as processes filed for the 1st respondent. Notwithstanding that application, the 1st respondent went on to file a notice of appeal to the Court of Appeal by which it sought amongst other reliefs, an order setting aside the notice of change of counsel filed by H. A. Bello, Esq. at the tribunal.

The appellant and the 3rd and 4th respondents raised a preliminary objection to the 1st respondent’s application. The tribunal stated that the 1st respondent was prevaricating by filing the application and an appeal at same time because both were inconsistent; that if it granted the application, it would place itself on a collision course with the Court of Appeal because the application and the appeal would clearly be in conflict if both were successful; and that the application was an abuse of process.
The 1st respondent appealed to the Court of Appeal, which allowed the appeal on the ground that the reliefs sought by the 1st respondent in the application and on the notice of appeal were not the same and that the 1st respondent had the constitutional right of appeal, which he could not be prevented from exercising.
Aggrieved, in turn, the appellant appealed to the Supreme Court.

Held : unanimously allowing the appeal

The following issues were raised and determined:

On Invalidity of court processes filed by counsel after being debriefed by party to an action:
Processes filed by counsel on behalf of a party after being debriefed are nullities and liable to be struck out. In this case, the several processes filed by Tawo E. Tawo, SAN on behalf of the 1st and 2nd respondents after he was debriefed were not only incompetent, invalid and void but also an abuse of the process of court. Therefore, the tribunal rightly struck them out. And the Court of Appeal erred when it set aside the ruling of the tribunal.

On Whether execution of judgment permissible during pendency of appeal against same judgment:
Though the subsistence of an appeal against the decision of a lower court does not operate as stay of execution, it may amount to contempt of the appellate court for the lower court to proceed with enforcement of its judgment during the subsistence of the appeal, the fact which the lower court is seised of. In this case, the tribunal rightly held that granting the 1st respondent’s application would bring it into collision course with the Court of Appeal.

On Whether forum shopping amounts to abuse of court process:
It is a gross abuse of judicial process for a party to embark on a frolic of forum shopping; that is looking for a favourable court to entertain its suit. In this case, the tribunal rightly held that it was an abuse of process for the 1st respondent to seek conflicting reliefs on the same issue and subject from different courts at same time. On the other hand, the Court of Appeal wrongly held that the 1st respondent’s conduct did not amount to abuse of court process.

On What constitutes abuse of court process:
The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. Its common feature is 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 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. The multiplicity of actions on the same matter between the same parties even when there is a right to bring the action is regarded as abuse.

The abuse lies in the multiplicity and manner of the exercise of the right rather than the exercise of the right per se. In this case, the tribunal rightly held that the 1st respondent’s application was an abuse of court process because the two process filed by the appellant – the one which sought to comply with the ruling and the other which sought to challenge and set aside the same decision would definitely place the tribunal on a collision course with the
Court of Appeal with a resultant adverse effect on the efficient and effective administration of justice.

Per OKORO, J.S.C. at pages 347-348 paras. G-E:
“The trial tribunal then held that the motion filed by the 1st respondent herein to regularize the processes filed against the ruling of the tribunal is an abuse of court process. On appeal, the court below set aside the said ruling and held that there was no abuse at all.
With due respect to the Justices of the court below, they made a grave error in the said decision. The appeal at the Court of Appeal was to set aside the ruling of the tribunal refusing to set aside the notice of change of counsel which would have had the effect of letting Tawo E. Tawo, SAN to represent both Petitioners (now 1st and 2nd respondents) should the appeal succeeded. The motion at the tribunal filed by the same Law firm of Tawo E. Tawo seeking to comply with the ruling of the court refusing to strike out the notice of change of counsel would have the effect of making Tawo E. Tawo appear for the 1st petitioner/1st respondent alone. This will definitely lead to complete confusion.
That is why I agree with the Tribunal, when it concluded as follows:-

“It is our considered view that a party must be consistent in the case he pursues and must not be allowed to embark on a frolic of forum shopping in different courts seeking conflicting prayers/reliefs on the same issue and subject. Such conduct is an abuse in our considered view”.

The above decision of the tribunal is not only sound but represents the position of the law. While at the Court of Appeal, the 1st respondent sought to set aside the tribunal’s ruling whereas at the tribunal, he sought an order to comply with the ruling. This was an abuse of the process of court. Indeed, it was an improper use of the judicial process. As was observed by the ‘Tribunal, the motions and the prayers made therein by the 1st respondent were intended to put them in collision course with the Court of Appeal. I agree that the
Court of Appeal was in error to set aside the ruling of the tribunal.”

On Right of party to an action to choice of counsel –
Parties are entitled to counsel of their choice without interference from the court or any other party. Put differently, parties are free to engage counsel of their choice at any time and may equally terminate such engagement at any time.

Courtesy:
Moruff O. Balogun Esq.
IJEBU ODE, OGUN STATE.
08052871414.