The Federal High Court in Abuja on Monday imposed N100 million fine on an official of the African Democratic Congress (ADC), Nkemakolam Ukandu, after striking out his suit alleging bias against the court’s Chief Judge, John Tsoho, and a judge of the court, Peter Lifu.
Salim Ibrahim, the judge who sat on the case, threw out the case on Monday for want of diligent prosecution.
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The judge’s order followed an oral application by their lawyer, J. U. K. Igwe, a Senior Advocate of Nigeria (SAN), who called for the striking of the suit and the N100 million fine.
The judge imposed the N100 million fine on Mr Ukandu as a retribution for the lack of diligent prosecution of the case.
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By the order, the plaintiff will pay N50 million to each of Mr Tosho and Mr Lifu within 14 days.
Persistent absentee
Court proceedings showed that neither Mr Ukandu nor his lawyer appeared before the court from the time the case was assigned to Judge Ibrahim.
PREMIUM TIMES reported that Mr Ukandu, the ADC national welfare secretary, sued the National Judicial Council (NJC), Mr Tsoho and Mr Lifu over alleged disobedience to a court order.
In the suit, he sought an order compelling the NJC to investigate allegations of corruption and abuse of judicial powers against Messrs Tsoho and Lifu.
When the suit came up on 22 June, no lawyer appeared for Mr Ukandu or the NJC. Mr Igwe, however, announced his appearance for Messrs Tsoho and Mr Lifu.
When Judge Ibrahim asked whether hearing notices had been served on the plaintiff and the NJC, the court registrar confirmed that proofs of service were in the court file. The judge thereafter adjourned the matter to 30 June.
On 30 June, neither Mr Ukandu nor his lawyer appeared before the court, despite the matter being fixed for mention. Their absence prompted Mr Igwe, who represented Mr Tsoho and Mr Lifu, to ask the court to strike out the suit. He argued that the plaintiff had also failed to appear at the previous sitting on 22 June, showing a lack of interest in prosecuting the case.
Judge Ibrahim, however, declined the request. He held that the plaintiff should be given one final opportunity in the interest of fair hearing. The judge also granted an application allowing court processes to be served on the plaintiff by substituted means after lawyers to Mr Tsoho and Mr Lifu said attempts to serve the documents at the address provided by the plaintiff’s lawyer had failed.
Before adjourning the matter to 6 July (Monday), Judge Ibrahim warned that the suit would be dismissed for lack of diligent prosecution if the plaintiff or his lawyer again failed to appear.
The heavy fine
Neither Mr Ukandu nor his lawyer appeared in court on Monday. NJC, the first defendant, was also not represented.
Addressing the court, Mr Igwe told Judge Ibrahim that all parties had been duly served with hearing notices.
He said the order for substituted service had been complied with by serving Mr Ukandu at the address he provided in his court documents.
According to the lawyer, the NJC was also duly served. He said a letter was delivered to the council in compliance with the court’s order and an acknowledged copy was before the court.
Continuing, Mr Igwe urged the court to strike out the suit with costs against the plaintiff.
He argued that the plaintiff’s conduct showed a deliberate attempt to frustrate the proceedings. He submitted that, under the Constitution and the Federal High Court Rules, his clients were entitled to costs because Mr Ukandu had continued “evading the consequences of this litigation.”
Relying on Order 19 Rule 1 of the Federal High Court Rules, Mr Igwe argued that the court had the power to strike out the suit because of the plaintiff’s repeated absence. He also cited Order 25 Rule 1(d), which, he said, entitled the second and third defendants to costs.
The lawyer said the plaintiff changed the address provided in his court processes “in order to evade the litigation.” He said, despite this, the court processes were eventually served on Mr Ukandu at his last known address in compliance with the court’s order.
“They brought the case and they were aware and not in today’s proceedings,” Mr Igwe argued. He urged the court to strike out the suit and award N50 million each in costs to Mr Tsoho and Mr Lifu.
Other alleged infractions
Aside from the issue of cost, Mr Igwe also submitted that Mr Tsoho and Mr Lifu, as judicial officers and public officers, were restrained by the Public Service Rules from joining issues with the plaintiff in the public arena.
Referring to the plaintiff’s statement of claim, Mr Igwe said Mr Ukandu admitted he had merely applied to be joined in the pending ADC leadership suit before the Federal High Court and that the application had yet to be heard.
He noted that despite not being a party to the case, Mr Ukandu wrote to the Chief Judge asking that the matter should not be assigned to certain judges, whom he allegedly described as corrupt.
Mr Igwe also argued that although Mr Ukandu filed the suit and publicised it in the media, he repeatedly failed to appear before the court.
He therefore urged the court to strike out the suit and award N50 million each in costs to Mr Tsoho and Mr Lifu.
After hearing the submissions, the judge struck out the suit and awarded N50 million each in costs to the two judges.
“Based on the provisions of Order 19 Rule 1 of the Federal High Court Rules 2019, the court hereby makes an order striking out this suit for lack of diligent prosecution,” the judge ruled.
“It is further ordered that the plaintiff shall pay the sum of N50 million each to the second and third defendants within 14 days from the date of this order.”
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Background
PREMIUM TIMES reported that the suit arose from the ADC leadership dispute involving an aggrieved party member, Nafiu-Bala Gombe, whose case is currently before Mr Lifu.
In that suit, Mr Gombe sued the ADC, the party’s interim national chairperson, David Mark; interim national secretary, Rauf Aregbesola; the Independent National Electoral Commission (INEC); and Ralph Nwosu.
Mr Gombe, a party official before recent defections altered the party’s leadership structure, is challenging the emergence of Mr Mark and Mr Aregbesola as national chairperson and national secretary.
He argues that their appointments violate the party’s constitution.
The case was initially assigned to Emeka Nwite of the same court, but later went to the Supreme Court before returning to the Federal High Court, where it was reassigned to Mr Lifu following an application by the applicant.
Mr Ukandu sought to join the suit through an application filed by his lawyer, Kalu Agu, but the application was rejected.
He accused Messrs Tsoho and Lifu of manifest bias and alleged that they were willing to act against the interests of the party.
In the suit, Mr Ukandu faulted Mr Tsoho for reassigning the case to Mr Lifu after it was withdrawn from Mr Nwite.
He argued that the reassignment disregarded orders of the Supreme Court and those previously made by Judge Nwite.
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