IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN
BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS
DATE: 12TH NOVEMBER 2020
SUIT NO: NICN/IB/31/2020
BETWEEN
1. Comrade Obi Okwudili Casmir
2. Charity Eedee Maculey [Lady Cha Cha]
3. Engr. Raymond Lasisi
4. King Waleman
5. Emmanuel Onotu
6. Prince Daniel Ezeji
7. Mutiu Ayeloja Claimants
(Suing as substantive Trustees and
members of the National Working
Committee of PERFORMING
MUSICIANS EMPLOYERS
ASSOCIATION OF NIGERIA [PMAN]
8. Registrar of Trade Union
AND
1. Sunny Neji
2. Zaaki Azay
3. Michael Stephen [Rugged Man]
4. Asha Fapohunda [Asha Gangali]
5. Gabriel Ocha Amnyi [Terry G]
6. Innocent Idibia [2 Face]
7. M.I. Agba Defendants
8. Tunde Omitogun
(Suing as members/representatives of
Performing Musicians Employers
Association of Nigeria “PMAN”)
9. Mr. Pretty Okafor
REPRESENTATION
Ademola Odetunde for the Claimants
I. I Udofia for the Defendants
JUDGMENT
1. Introduction & Claims
1. The Claimants approached the Court via an Originating Summons dated and filed 23/3/2020 and sought the determination of the following questions -
1. Whether from the facts and circumstances of this case the Consent Judgment of Honourable Justice Opeloye A. Ogunbowale dated the 6th day of February 2020 in Suit No. NICN/IB/90/2019 between Sunny Neji and 7 Ors. vs Mr. Pretty Okafor and Another was given under fraud and deceit, mistaken of facts, misrepresentation or non-disclosure of material facts, without proper authority and is accordingly set aside same being a nullity.
2. Whether from the facts and circumstances of this case the multiplicity of action by the Defendants by obtaining Consent Judgment of Honourable Justice Opeloye A. Ogunbowale of the National Industrial Court, Ibadan Division dated the 6th day of February 2020 in Suit No. NICN/I/90/2019 between Sunny Neji and 7 others vs Mr. Pretty Okafor & Another pending hearing of the Contempt proceedings before Honourable Justice O.A. Obaseki in suit No. NICN/LA/272/2015 between the Defendants representing the Performing Musicians Employers Association of Nigeria (PMAN) vs Registrar of Trade Union and 19 others constitutes an abuse of court process.
3. Whether from the facts and circumstances of this case the Claimants have the Locus Standi to set aside the Consent Judgment of Honourable Justice Opeloye A. Ogunbowale dated the 6th day of February 2020 in Suit No. NICN/IB/90/2019 between Sunny Neji and 7 others vs Mr. Pretty Okafor and Another.
2. The Claimants accordingly sought the following reliefs against the Defendants –
1. A Declaration that the consent judgment of Honourable Justice Opeloye A. Ogunbowale dated the 6th Day of February 2020 in Suit No: NICN/IB/90/2019 and Another was given under fraud and deceit, mistaken of facts, misrepresentation or non-disclosure of material fact, without proper authority and is accordingly set aside, same being a nullity.
2. A Declaration that the multiplicity of action by the Defendants by obtaining Consent Judgment of Honourable Justice Opeloye A. Ogunbowale of the National Industrial Court, Ibadan Division dated the 6th day of February 2020 in suit No. NICN/IB/90/2019 between Sunny Neji & 7 Others vs. Mr. Pretty Okafor pending the hearing of the Contempt Proceedings before Honourable Justice O. A. Obaseki in suit No. NICN/LA/272/2015 between the Defendants representing the PERFORMING MUSICIANS EMPLOYERS ASSOCIATION OF NIGERIA PMAN vs. REGISTRAR OF TRADE UNION & 19 OTHERS constitute an abuse of court process.
3. A Declaration that the consent judgment of Honourable Justice O. A. Obaseki – Osaghae dated 20th September 2017 in suit No. NICN/LA/272/2015 between the Performing Musicians Employers Association of Nigeria (PMAN) vs. Registrar of Trade Unions and 19 others still subsist.
4. An Order of Perpetual Injunction restraining the Defendants whether jointly and severally from further parading themselves as members, representatives. Trustees of the Performing Musicians Employers Association of Nigeria [PMAN].
5. And for such further or other orders as the Honourable Court may deem fit to make in the circumstances.
3. The Originating Summons was supported by a 6-paragraph Affidavit in Verification of Enforcement on the Summons; a 38-paragraph Affidavit in Support of the Originating Summons deposed to by the 1st Claimant with 16 exhibits and a 7-page written address in support of the Originating Summons.
2. Defence & Counter claim
4. The Defendants entered an appearance to this suit on 27/7/2020, filed a 26-paragraph Counter Affidavit in opposition, sought counter claims and set down the following questions for determination –
1. Whether having regard to the constituent’s clauses or provisions of the Consent Judgment of the National Industrial Court of Nigeria, holding at Ibadan in Suit No. NICN/IB/90/2019 delivered by Honourable Justice Opeloye A. Ogunbowale on 6th day of February, 2020, the Counter-claimants (Pretty Okafor’s led PMAN leadership) can continue to make up the National Working Committee (NWC) that will steer, pilot, direct and lead the day to day activities of the Performing Musicians Employers Association of Nigeria (PMAN) for the period of Four (4) years from the 6th day of February, 2020 to the 5th day of February, 2024?
2. Whether pursuant to the extant provisions and dictates of the Consent Judgment of the National Industrial Court of Nigeria, holding at Ibadan in Suit No. NICN/IB/90/2019 delivered by Honourable Justice Opeloye A. Ogunbowale on 6th day of February, 2020, the Counter-Claimants’ right to the management/leadership of Performing Musicians Employers Association of Nigeria cannot be interfered with by the Defendants to the Counter-claim or any other persons during the subsistence of the extant Consent Judgment?
3. If the answers to questions 1 and 2 above are in the positive, whether the Defendants to the counter-claim can be restrained from parading themselves as members of the National Working Committee of the Performing Musicians Employers Association of Nigeria?
5. The Defendants thereafter counter claimed as follows against the Claimants
1. A Declaration that the counter-claimants (Mr. Pretty Okafor and 8 others) can continue to make up the National Working Committee (NWC) that will steer, pilot, direct and lead the day to day activities of the Performing Musicians Employers Association of Nigeria (PMAN) for the period of four (4) years from the 6th day of February, 2020 to 5th February, 2024.
2. A Declaration that the Counter-Claimants’ right to the management/leadership of the Performing Musicians Employers Association of Nigeria cannot be interfered with by the Defendants to the Counter-claim or any other persons whether named herein or not during the subsistence of the extant Consent Judgment in Suit No. NICN/IB/90/2019 delivered by Honourable Justice Opeloye A. Ogunbowale on 6th day of February, 2020.
3. An Order that the Counter-Claimants (Mr. Pretty Okafor and 8 others) are hereby judicially empowered to make up the PMAN’s National Working Committee (NWC) immediately; they shall have the power to direct, run and lead the PMAN at the National level and to have supervisory power on PMAN’s State Chapters all over Nigeria.
4. An Order that as from the commencement of this Judgment, any National Working Committee of PMAN whether at the National or State level is hereby dissolved. In the same vein, the Defendants to the Counter-Claimant herein or any person holding himself/herself as the National President of PMAN, whether named or not shall cease to hold themselves out as such.
5. An Order restraining the Defendants to the Counter-claim or any other persons from parading themselves by whatever means as a President or members of the National Working Committee of the Performing Musicians Employers Association of Nigeria during the subsisting Consent Judgment of this Honourable Court made on 6th day of February, 2020 in Suit No. NICN/IB/90/2019.
6. The Counter claim was supported by a 20-paragraph affidavit deposed to by one Itodo Imale and a Written Address in support of both the Counter Affidavit and the Counter claim.
3. Case of the Claimants
7. The case of the Claimants as reflected in the affidavit in support of the originating summons in brief is that the multiplicity of action by the Defendants in this case at both Lagos and Ibadan Judicial Divisions of the National Industrial Court of Nigeria is fraudulent, frivolous, vexatious and a gross abuse of Court process; that the Consent Judgment obtained by the Defendants in Suit No: NICN/IB/90/2019 before Ogunbowale J was obtained by fraud and deceit, mistake of facts, misrepresentation or non-disclosure of material facts which there was an obligation to disclose and without proper authority and accordingly should be set aside and declared a nullity; that the intention of the Defendants was to use the said Consent Judgment to factionalise and destabilise the Association and thereby continuing the leadership crisis which has rocked the Association in the last 15 years and that it is in the interest of justice that the said Consent Judgment be set aside and declared a nullity.
8. In the accompanying written address, learned Counsel set down the following issues for determination –
1. Whether from the facts and circumstances of this case the Consent Judgment of Honourable Justice Opeloye A. Ogunbowale dated the 6th day of February 2020 in suit No. NICN/IB/90/2019 between Sunny Neji and 7 Ors. vs Mr. Pretty Okafor and Another was given under fraud and deceit, mistaken of facts, misrepresentation or non-disclosure of material facts, without proper authority and is accordingly set aside same being a nullity.
2. Whether form the facts and circumstances of this case the multiplicity of action by the Defendants by obtaining Consent judgment of Honourable Justice Opeloye A. Ogunbowale of the National Industrial Court, Ibadan Division dated the 6th day of February 2020 in suit No. NICN/IB/90/2019 between Sunny Neji and 7 others vs Mr. Pretty Okafor pending hearing of the Contempt proceedings before Honourable Justice O.A. Obaseki in suit No. NICN/LA/272/2015 between the Defendants representing the Performing Musicians Employers Association of Nigeria (PMAN) vs Registrar of Trade Union and 19 others constitutes an abuse of court process.
3. Whether from the facts and circumstances of this case the Claimant has the Locus Standi to set aside the Consent Judgment of Honourable Justice Opeloye A. Ogunbowale dated the 6th day of February 2020 in Suit No. NICN/IB/90/2019 between Sunny Neji and 7 others vs Mr. Pretty Okafor and Another.
9. Arguing these issues, learned Counsel submitted that a Consent Judgment may be set aside where it was obtained by fraud or deceit; obtained by misrepresentation or non-disclosure of a material fact for which there was an obligation to disclose; where obtained under duress or concluded under mistaken fact or where obtained without proper authority citing Lamude v. Adamawa State J.S.C (1999)12 NWLR (Pt. 629) 86 & Afegbai v. A. G of Edo State (2001) FWLR (Pt. 69) 1352; that from the affidavit in support it is apparent that the said consent Judgment was obtained by fraud and deceit and without disclosure of material facts; that the issue of relocating the Association office as claimed by the Defendants was a calculated attempt to deceive the Court in believing that there exists a dispute between the parties so as to give the Defendants in the suit the locus to approach the Court and subsequently convert same to a Consent Judgment delivered by Ogunbowale J and that by the Constitution of the Association, its office is at D Lobby, National Theatre, Iganmu, Lagos. On the concept of abuse of Court process, learned Counsel submitted that the concept is imprecise; that it involves circumstances and situation of infinite variety and conditions; that a common feature of it is the improper use of judicial process by a party in litigation to interfere with the due administration of justice citing Saraki v. Kotoye (1992)9 (Pt. 264) 156 & Adesanoye v. Adewole (2000)9 NWLR (Pt. 671) 127 and that an abuse of Court process is evident in the present case where the Defendants instituting different actions between the same parties simultaneously in different Court even though on different grounds.
10. Finally, on the issue of locus standi, Counsel submitted that the question whether a plaintiff has locus standi to bring an action does not depend on the success or the merits of the case, but on whether the plaintiff has sufficient interest or legal right in the subject matter of the dispute to entitle him to institute the action; that a party can derive locus standi from the Constitution, the Statutes or Customary law and that the Claimants derive their locus standi to set aside the Consent Judgment of Ogunbowale J dated 6/2/2020 in Suit No: NICN/IB/90/2019 between Sunny Neji & 7 Ors. v. Pretty Okafor & Anor. from the Constitution of the ASSOCIATION as amended citing Article 10(1) & (2) and Article 13(1) & (2) of the PMAN Constitution, 2006, as amended. Counsel prayed the Court grant all the prayers sought in this case.
4. Case of the Defendants
11. In the Counter Affidavit deposed to by one Boniface Itolo in opposition to the Originating Summons, the Defendants averred, inter alia, that the Consent Judgment in Suit No: NICN/IB/90/2019 did not in any way affect the Claimants and hence the Claimants lack the legal capacity to challenge same before this Court; that the Claimants were not parties to the said Consent Judgment and cannot apply to nullify same; that the Claimants were not parties and the 1st Claimant not named as the President of PMAN in Suit No: NICN/LA/272/2013; that there was no fraud in the Consent Judgment sought to be set aside; that if there was fraud in the said Consent Judgment only parties who consented to it could apply to set it aside and not the Claimants; that a Consent Judgment is a final Judgment which neither the Court that delivered same nor Court of coordinate jurisdiction can reopen; that this Court cannot re-visit this suit having determined the rights and liability of the parties in same; that there was no fraud in the said Consent Judgment; that this suit is an abuse of Court process; that the Claimants filed this suit in order to start a new legal battle against already concluded final Judgment of the Court and that the appropriate thing to do is for this Court to dismiss this suit for lacking in merit.
12. Respecting the counter claims filed, in its Affidavit in support of Counter claim, the Defendants averred that this Honourable Court entered Consent Judgment in favour of the Counter-claimants herein on the 6th day of February, 2020 and the Counter claimants have since then been acting as the National Working Committee of PMAN without let or hindrance; that there was no fraud or deceit in the said Consent Judgment of this Honourable Court; that Mr. Obi Okwudili also known as (Uncle P) the 1st Defendant to the Counter-Claim was never at any point in time made the National President of PMAN; that the 1st Defendant and all the Defendants to the Counter claims have been parading themselves as constituted National Working Committee of the Association without any legal justification; that the Defendants to the Counter claims have been interfering with the leadership of PMAN contrary to the Consent Judgment of this Court; that the Defendants to the Counter claims have been making jest of the Consent Judgment of this Court; that the Consent Judgment is not liable to be set aside as same was dully made by the Court and the Court has since completed its judicial function; that the Defendants to the counter claim ought to respect the sanctity of the Judgment rather than disobeying it and that it is necessary for this Court to answer the questions posed for determination in favour of the Counter claimants and to grant the reliefs sought hereunder.
13. Learned Counsel to the Defendants filed a written address both in support of the Counter Affidavit/Counter claims and in opposition to the Originating Summons. Arguing the issues slated for determination, learned Counsel submitted that having claimed that the Defendants obtained the Consent Judgment in Suit No:NICN/IB/90/2019 as a result of fraud and deceit, the Claimants are under an obligation to prove same; that an allegation of fraud must be proved beyond reasonable doubt citing Arowosaye v. Ogedengbe & Anor, (2008) LPELR-370 & Section 135(1), Evidence Act, 2011; that fraud is a serious crime and in Court actions, the particulars must be pleaded and proved citing Fabunmi v. Agbe (1985)1 NWLR (Pt. 2) 299 & Olufunmise v. Falana (1990)3 NWLR (Pt. 136)1 at 16 and that the Claimants have failed to prove the alleged fraud in the said Consent Judgment. Counsel added that Consent Judgment is usually an agreement by the parties to the action which the Court merely reduced into a Judgment form citing SPM Ltd v. Adetunji (2009)13 (Pt. 1159) 647 and that the Claimants cannot impeach the said Consent Judgment not being parties to same.
14. On the allegation of abuse of Court process, learned Counsel submitted that to constitute same, both the parties and the issues raised in the different suits must be the same citing Ntuks v. N.P.A (2007)13 NWLR (Pt. 1051) 392; that in all the processes filed by the Claimants, it was not shown that the parties, the subject matter and the issues were the same in Suit No: NICN/IB/90/19 in which Consent Judgment was delivered and Suit No: NICN/LA/272/2013; that 1st – 7th Claimants and the Defendants were not parties to the Consent Judgment obtained before Obaseki-Osaghae J in Suit No: NICN/LA/272/2013; that the reliefs obtained in both Consent Judgments are not the same and that since the issue submitted for determination in Suit No: NICN/LA/272/2013 differ from that of Suit No: NICN/IB/90/2019, though on PMAN, there cannot be an abuse of Court process as being contended by the Claimants citing C.O.M Inc. v. Cobham (2006)15 NWLR (Pt. 1002) 283 & N.D.I.C. v. U.B.N Plc (2015) NWLR (Pt. 1473) 246.
15. On the issue of locus standi, learned Counsel submitted that this Court is functus officio regarding the Consent Judgment in Suit No: NICN/IB/90/2019 and as such cannot reopen same; that the Claimants not being parties to Suit No: NICN/IB/90/2019 upon which the Consent Judgment was entered on 6/2/2020, they lack the locus standi to challenge same before this Court; that should the Claimants feel interested in the said suit, the only available option to them is to apply for leave to appeal against the said Consent Judgment and not to apply to set it aside citing Bello v. I.N.E.C (2010)8 NWLR (Pt. 1196) 342 & A.D.H.L. Ltd. V. The Hon. Minister of F.C.T (2013)8 NWLR (Pt. 1357) 493. Learned Counsel prayed the Court to resolve the questions posed for determination by the Claimants in the negative, dismiss all the reliefs sought, answer the questions in the positive and grant all the counter claims sought.
5. Decision
16. I have read and clearly understood all the processes filed by the parties on either side. The processes filed by the Claimants are Originating Summons, Affidavit of Urgency, Affidavit in Verification of Endorsement on the Originating Summons, Affidavit in Support of Originating Summons, Written Address in Support of Originating Summons, Reply to Counter Affidavit in Opposition to the Originating Summons, Counter Affidavit in Opposition to the Counter claim and Written Address in Support of Reply to Defendants’ Counter Affidavit on Point of Law and Counter Affidavit to Counter claim. The Defendants on the other hand filed the following processes - a Memorandum of Appearance, Counter Affidavit in Opposition to the Originating Summons, Questions for Determination, Affidavit in Support of Counter claim, Written Address in Support of the Counter Affidavit/Counter claim and in Opposition to the Originating Summons.
17. The Claimants set down 3 questions for the Court to answer. The first question is -
Whether from the facts and circumstances of this case the Consent Judgment of Honourable Justice Opeloye A. Ogunbowale dated the 6th day of February 2020 in suit No. NICN/IB/90/2019 between Sunny Neji and 7 Ors. vs Mr. Pretty Okafor and Another was given under fraud and deceit, mistaken of facts, misrepresentation or non-disclosure of material facts, without proper authority and is accordingly set aside same being a nullity?
18. On the 6th of February, 2020, the parties in Suit No: NICN/IB/2019 having resolved to settle their differences amicably approached Ogunbowale J of this Court with their Terms of Settlement. Pursuant to an application by Counsel, same was entered as Consent Judgment of the Court. It is that Judgment that the Claimants have sought to be set aside on the ground inter alia that it was obtained by fraud and hence a nullity.
19. The general principle of law is that a Court lacks the jurisdiction to set aside its own decision or that of a Judge of coordinate jurisdiction. Exceptions to this, as noted by Ayoola JSC in Onwuka v Maduka (2002) 18 NWLR (Pt. 799) 586 at 602 are where the decision is a nullity or as provided for by the rules, such as when Judgment is given in default or the Court is given the power to discharge the order it has made.
20. Onu, J.S.C brought to the fore both the reason for this and the exceptions to this rule in the earlier case of Emordi v Kwentoh (1996) 2 NWLR (Pt. 433) where His lordship on page 656 said –
"True it is that it is not competent of a judge to overrule the decision or ruling made by another Judge or sit in judgment over the decision of a brother Judge. The reason for this which is not far to seek, stems from the fact that the Judges are of co-ordinate Jurisdiction and no one Judge can therefore sit on appeal over the decision or ruling of his brother Judge. A glaring exception to the above principle of law is perhaps the power to set aside a judgment given in the absence of a party which power can be exercised by any Judge of the High Court, not necessarily the judge who gave the judgment’’.
21. That is as regards setting aside Judgment generally. The Judgment sought to be set aside in the instant case is a Consent Judgment.
22. A Consent Judgment is not a Judgment delivered on the merit of the case. In Consent Judgment, parties are not heard and by its nature it is a contractual agreement between the parties. It evolved by agreement of the parties to the suit which agreement might be as a result of negotiation or the process of “give and take” by the parties. It is trite that parties are bound by their voluntarily entered agreement. In Desemy of (Nig) Ltd v. Kwara State Govt & Ors (2018) LPELR-45705 the Court of Appeal citing Edilcon (Nig) Ltd v. UBA Plc (2017) LPELR - 42342 (SC), A.G, Rivers State v. A.G, Akwa Ibom (2011) 8 NWLR (Pt. 1248) 31 and E.A Ltd Industries v. NERFUND (2009) 8 NWLR (Pt. 1144) page 532 at 592, held that parties are under obligation to honour agreements voluntarily entered into. It has never been the duty of the Court to write for or re-write agreement of the parties. That being so, no Court is allowed to re-write the contract voluntarily entered into by parties thereto. A Court too must treat as sacrosanct the terms of an agreement freely entered into by the parties as parties to a contract enjoy their freedom to contract on their own terms so long as same is lawful. See Suleiko Communications Ltd v. Access Bank Plc (2016) LPELR-41321 relying on Omega Bank (Nig) Plc v. O.B.C. Ltd (2005) 8 NWLR (Pt. 928) 547and BFI Group Corporation v. Bureau of Public Enterprises (2012) 18 NWLR (Pt. 1332) 209.
23. It must be stressed that a Consent Judgment may be set aside either by the court that gave/made it or a court of competent jurisdiction on the grounds for which a contractual agreement could be voided or rescinded. These include, where the Consent Judgment was obtained by fraud, duress, misrepresentation or without legal capacity. See Ochijenu-Achara v. Ejiga & Anor, (2008) LPELR-45958 (CA). It has been pointed out before now that a Consent Judgment is akin to a contractual agreement voluntarily entered into. Only parties to a voluntary agreement can successfully apply to impeach it. Were the Claimants parties to the Consent Judgment of Ogunbowale J of 6/2/2020 in Suit No: NICN/IB/90/2019? That Consent Judgment was exhibited by the Claimant as Exh. P. By the parties on it, the Claimants were not parties to the agreement that culminated in the said Consent Judgment. What then is the basis of their competence to apply to set same aside? Secondly, the Claimants alleged that the said Consent Judgment was obtained by fraud and deceit, among others. Fraud has some elements of crime in it. In Fabunmi v. Agbe (1985) 1 NWLR (Pt.2) 299, Obaseki, JSC held at page 319 that fraud is a serious crime and in civil matters, the particulars must be pleaded and proved strictly. See Ojibah v. Ojibah (1991) 6 SCNJ 156 at 164 and Egbase v. Oriareghen (1985) 10 SC 80. The onus of proving fraud inherent in the Consent Judgment of 6/2/2020 lies on the Claimants.
24. Fraud being a crime as shown by the authorities, to discharge the onus of proof, the Claimants ought to have adduced cogent, credible and admissible evidence in proof of the allegation. That was not done by the Claimants in this case. All that the Claimants did was to simply allege fraud without more. It is not sufficient. That is not what the authorities require in proof of fraud in situation as the instant case. In any event, the law is trite that the burden of proof is always on he who asserts. The Claimants asserted fraud but failed to prove same to warrant the setting aside of the Consent Judgment of Ogunbowale J of 6/2/2020. I thus have no option than to answer the first question set down by the Claimants in the negative. I state that from the facts and circumstances of this case the Consent Judgment of Honourable Justice Opeloye A. Ogunbowale dated the 6th day of February 2020 in suit No. NICN/IB/90/2019 between Sunny Neji and 7 Ors. vs Mr. Pretty Okafor and Another was not given under fraud and deceit, mistaken of facts, misrepresentation or non-disclosure of material facts, without proper authority and is accordingly not liable to be set aside same not being a nullity.
25. The second question put forward by the Claimants is -
Whether from the facts and circumstances of this case the multiplicity of action by the Defendants by obtaining Consent Judgment of Honourable Justice Opeloye A. Ogunbowale of the National Industrial Court, Ibadan Division dated the 6th day of February 2020 in suit No. NICN/IB/90/2019 between Sunny Neji and 7 others vs Mr. Pretty Okafor & Anor pending hearing of the Contempt proceedings before Honourable Justice O.A. Obaseki in suit No. NICN/LA/272/2015 between the Defendants representing the Performing Musicians Employers Association of Nigeria (PMAN) vs Registrar of Trade Union and 19 others constitutes an abuse of court process.
26. The law relating to abuse of Court process appears clear enough. Ogakwu J.C.A citing Oyegbola v. Esso West African Inc. (1966) 1 All NLR 170 put it bluntly in APC v. John & Ors. (2019) LPELR-4700 that ‘it is hornbook law that instituting several actions on the same subject matter against the same opponent on the same issues even when there is a right to bring the action is an abuse of process of Court’. This portends therefore that to constitute an abuse of Court process, a party must have instituted several actions, on the same subject matter and against the same opponent notwithstanding that there is a right inherent to bring the actions. Could it be said that Suit No: NICN/IB/90/2019 Sunny Neji & Ors. v. Mr. Pretty Okafor & Anor. in which a Consent Judgment was given pursuant to the Terms of Settlement filed was an abuse of Court process considering the pendency of the contempt proceedings before Honourable Justice O.A. Obaseki-Osaghae in suit No. NICN/LA/272/2015 between the Defendants representing the Performing Musicians Employers Association of Nigeria (PMAN) vs Registrar of Trade Union and 19 others made Suit No: NICN/IB/90/2019 an abuse of Court process. I perused Exh. P1 – a Motion on Notice filed in Suit No: NICN/LA/272/2015. The Claimant/Applicant in that is Performing Musicians Employers Association of Nigeria (PMAN).
27. I have no evidence to support the assertion that the Defendants were the Claimants in that case. There is also no evidence before me to the effect that the Defendants in this suit represented PMAN as Claimants in the 2015 suit before Obaseki-Osaghae J. I note also that 1st to 7th Claimants in this case were not parties to that case. It is also on record that the 1st Defendant in the 2015 suit is the 8th Claimant in the present suit. Again, none of the present Defendants was a party in the 2015 suit before Obaseki-Osaghae J of this Court. In both the Affidavit in support of the Originating Summons and the Counter Affidavit in opposition to the Counter claim, the Claimants failed to aver to the fact that the parties, subject matter and issues in both suits are the same. All this aside, a major part of Claimants’ argument is that the pendency of the contempt proceeding before Obaseki-Osaghae J in Suit No: NICN/LA/272/2015, made Suit No: NICN/IB/90/2019 in which a Consent Judgment was delivered an abuse of Court process. However, Exh. P1 on page 157 of the Record of Court was a copy of the Motion on Notice in which the Claimant/Applicant sought leave of Court ‘to discontinue the committal proceeding(s) commenced in this suit against the Alleged Contemnor (Mr. Pretty Okafor)’.
28. The Applicant in that Motion on Notice also prayed for an order of Court striking out the Forms 48 and 49 issued and served in the suit against the alleged Contemnor (Mr. Pretty Okafor) as well as an order of Court staying further proceedings of the committal proceedings pending the hearing and determination of instant application. I daresay that with the filing of that application, the committal proceedings abated. For, it is doubtful if any Court would refuse to grant such prayers considering their nature. Thus, even if there was any contempt proceeding pending as in Suit No: NICN/LA/272/2015 it does not make the suit leading to the Consent Judgment of 6/2/20 before Ogunbowale J an abuse of Court process. The second question set down by the Claimant must be answered in the negative and I so do. From the facts and circumstances of this case the Suit No: NICN/IB/90/2019 does not in any way constitute an abuse of Court process.
29. The third question set by the Claimants is-
Whether from the facts and circumstances of this case the Claimants have the Locus Standi to set aside the Consent Judgment of Honourable Justice Opeloye A. Ogunbowale dated the 6th day of February 2020 in Suit No. NICN/IB/90/2019 between Sunny Neji and 7 Others vs Mr. Pretty Okafor and Another.
30. The Claimants were not parties to the agreement that led to the Consent Judgment in Suit No: NICN/IB/90/2019. Do they possess the locus standi to set same aside? That is the fulcrum of this third question. It is most unusual to find a Judgment of Court delivered after parties are heard on the merit that will be pleasing to both sides of the divide. This is because the Court would have pronounced one way or the other on the rights, liabilities and obligations of the litigating parties. However, that is not the same with Consent Judgment which the Supreme Court once descried in SPM Limted v. Adetunji (2009)13 NWLR (Pt. 1159) 647 as a contract between the parties whereby rights are created between them in substitution for order of consideration of the abandonment of the claim or claims pending before the Court.
31. The Consent Judgment in Suit No: NICN/IB/90/2019 is nothing short of a contractual agreement between the parties to it. The parties in that case met. They talked. They negotiated. They agreed. They shifted their different and respective positions so as to accommodate the diverse issues and interest leading to the action. They came up with an agreement and moved the Court to enter the agreement as Consent Judgment. The intention, no doubt, is to put a stop to the pending litigation. The Court having found no illegality or any vitiating element in it entered Consent Judgment as sought by the parties. Except with a proof of any vitiating element of a valid contract, none of the parties can set it aside and except with the leave of Court, none of the parties to it can appeal same. I have noted before now that the Claimants in this case were not parties to the agreement that culminated in the Consent Judgment of 6/2/2020 in Suit No: NICN/IB/90/2019. Can a person not being a party to an agreement or a contract apply to set same aside? I doubt. The law does not support that position. See Dizengoff W.A (Nig) Ltd v. Agric Service, Training Centre and Marketing Ltd (2018) LPELR-46361(CA). In any event, what confers standing on the Claimants to apply to set aside the Consent Judgment in Suit No: NICN/IB/2019 of 6/2/2020? I carefully read the 38-paragraph affidavit in support of the Originating Summons filed by the Claimants. I find no averment in the entire deposition respecting how and where the Claimants derived their standing to seek setting aside of the Consent Judgment.
32. However, in his unpaged written address, its second paragraph on page 26 of the Court Record, learned Counsel had submitted thus –
“A Plaintiff derives Locus Standi from the Constitution, the Statutes, or Customary Law. We submit that the Claimants Locus Standi to set aside the Consent Judgment of Hon. Justice Opeloye A. Ogunbowale dated the 6th of February 2020 in Suit No: NICN/IB/90/2019 between Sunny Neji & 7 others vs Mr. Pretty Okafor and others is derived from the Constitution of the ASSOCIATION 2006 as amended where the Claimant derives the legal right in the subject matter of the dispute to entitle him to institute the action. We also refer your lordship to Article 13(1) and (2) of the PMAN Constitution of 2006 (as amended)”.
33. With respect to the above, I start off with the trite proposition that written addresses are neither pleadings nor evidence. No matter how beautifully written and argued they cannot take the place of evidence led in a case. Neither also can they successfully panel beat or repair a battered or dented case. See Bode Rhodes-Vivour J.S.C in Oforishe v. Nigeria Gas Co. Limited (2017) LPELR-42766. Secondly, learned Counsel to the Claimants stated the position of the Law correctly that a Plaintiff can derive locus standi from the Constitution, the Statutes, or Customary Law. However, privately drafted Constitutions or Constitutions of private bodies and organisations are not of the classes of the Constitution that can confer locus standi on a plaintiff as argued in this case. The PMAN Constitution of 2006 does not and cannot confer locus standi on the Claimants to set aside the Consent Judgment in Suit No: NICN/IB/90/2019 of 6/2/2020 of which they were not parties to. I therefore answer the third question in the negative. I hold that from the facts and circumstances of this case the Claimants do not have the Locus Standi to set aside the Consent Judgment of Honourable Justice Opeloye A. Ogunbowale dated the 6th day of February 2020 in Suit No. NICN/IB/90/2019 between Sunny Neji and 7 others vs Mr. Pretty Okafor and Another.
34. Having answered all the questions set down by the Claimants in the negative, I refuse and dismiss all the reliefs sought for being unmeritorious.
35. In the Counter claims filed, the Defendants/Counter claimants set down 3 questions for determination. The first is –
Whether having regard to the constituent clauses or provisions of the Consent Judgment of the National Industrial Court of Nigeria, holding at Ibadan in Suit No. NICN/IB/90/2019 delivered by Honourable Justice Opeloye A. Ogunbowale on 6th day of February, 2020, the Counter-claimants (Pretty Okafor’s led PMAN leadership) can continue to make up the National Working Committee (NWC) that will steer, pilot, direct and lead the day to day activities of the Performing Musicians Employers Association of Nigeria (PMAN) for the period of Four (4) years from the 6th day of February, 2020 to the 5th day of February, 2024?
36. I have perused the Consent Judgment of Ogunbowale J of this Court dated 6/2/2020 in Suit No. NICN/IB/90/2019. Clauses 8, 9 and 10 the said Consent Judgment aptly answered the first question as put forward by the Defendants/Counter claimants. I elect to reproduce the clauses for ease of understanding –
“8. Be known that that National Working Committee that will run the affairs of Performing Musicians Employers Association of Nigeria (PMAN) for the next four years are(sic) follows:
1. Mr. Pretty Okafor (National President)
2. Sunny Neji (National 1st Vice President)
3. Zaaky Azzay (National 2nd Vice President)
4. Asha Fapohunda (Gangali) (National Treasure)
5. Boniface Itodo (National Secretary General)
6. Innocent Idibia (2Baba)(Ex-officio)
7. M.I. Abaga (Ex-officio)
8. Gabriel Amayin (Terry G (Ex-officio)
9. Arthor Pepple (Ex-officio)
10. Rugged Man Michael Stephen (Ex-officio)
11. Tunde Omitogun (National Assistant General Secretary)’.
“9. The above named person(sic) are hereby Judicially empowered to constitute the PMAN’s National Working Committee forthwith; they shall have the power to direct, run and lead PMAN at the National level and to ave supervisory power on PMAN’s State Chapters all over Nigeria”.
“10. The persons mentioned in Paragraph 8 above, shall henceforth be the Trustees of PMAN vested with the powers to recover all PMAN’s properties, amend PMAN’s Constitution and oversee the overall affairs of PMAN for the next four years”.
37. Let me reiterate again the fact that the said Consent Judgment is nothing but a judicial reflection of what the parties to same agreed to be bound with. It is therefore apparent from the 3 clauses of the Consent Judgment quoted above that the first question set down by the Defendants/Counter claimants must be and is here answered in the affirmative. I thus answer same as follows that having regard to the constituent clauses or provisions of the Consent Judgment of the National Industrial Court of Nigeria, holding at Ibadan in Suit No. NICN/IB/90/2019 delivered by Honourable Justice Opeloye A. Ogunbowale on 6th day of February, 2020, the Counter-claimants (Pretty Okafor’s led PMAN leadership) can continue to make up the National Working Committee (NWC) that will steer, pilot, direct and lead the day to day activities of the Performing Musicians Employers Association of Nigeria (PMAN) for the period of Four (4) years from the 6th day of February, 2020 to the 5th day of February, 2024.
38. The second question by the Defendants/Counter claimants is –
Whether pursuant to the extant provisions and dictates of the Consent Judgment of the National Industrial Court of Nigeria, holding at Ibadan in Suit No. NICN/IB/90/2019 delivered by Honourable Justice Opeloye A. Ogunbowale on 6th day of February, 2020, the Counter-Claimants’ right to the management/leadership of Performing Musicians Employers Association of Nigeria cannot be interfered with by the Defendants to the Counter-claim or any other persons during the subsistence of the extant Consent Judgment?
39. The clear and unambiguous intention of the parties to the Consent Judgment of 6/2/2020 before Ogunbowale J is such as to ensure that the Defendants/Counter claimants have unfettered and unhindered rights to the management and leadership of PMAN for the next four years. That was the intention of the parties who approached the Court of Ogunbowale J with their agreement. That was also the necessary intention of Ogunbowale J in entering the agreement of the parties as Consent Judgment of Court. Ogunbowale J neither added to nor removed from what the parties agreed to. I answer the second question in the negative and state that pursuant to the extant provisions and dictates of the Consent Judgment of the National Industrial Court of Nigeria, holding at Ibadan in Suit No. NICN/IB/90/2019 delivered by Honourable Justice Opeloye A. Ogunbowale on 6th day of February, 2020, the Counter-Claimants’ right to the management/leadership of Performing Musicians Employers Association of Nigeria CANNOT be interfered with by the Defendants to the Counter-claim or any other persons during the subsistence of the extant Consent Judgment.
40. The final question set down by the Defendants/Counter claimants is -
If the answers to questions 1 and 2 above are in the positive, whether the Defendants to the counter-claim can be restrained from parading themselves as members of the National Working Committee of the Performing Musicians Employers Association of Nigeria?
41. Having so answered the first 2 questions set down by the Defendants/Counter claimants, I answer the third question in the affirmative. I hold that the Defendants to the counter-claim can be restrained from parading themselves as members of the National Working Committee of the Performing Musicians Employers Association of Nigeria.
42. Consequent upon the resolution of the 3 questions brought by the Defendants/Counter claimants, I grant the 5 prayers as sought by them.
43. I declare that the Defendants/Counter-claimants (Mr. Pretty Okafor and 8 others) can continue to make up the National Working Committee (NWC) that will steer, pilot, direct and lead the day to day activities of the Performing Musicians Employers Association of Nigeria (PMAN) for the period of four (4) years from the 6th day of February, 2020 to 5th February, 2024.
44. I declare that the Defendants/Counter-Claimants’ right to the management/leadership of the Performing Musicians Employers Association of Nigeria cannot be interfered with by the Defendants to the Counter-claim or any other persons whether named herein or not during the subsistence of the extant Consent Judgment in Suit No. NICN/IB/90/2019 delivered by Honourable Justice Opeloye A. Ogunbowale on 6th day of February, 2020.
45. I order that the Defendants/Counter-Claimants (Mr. Pretty Okafor and 8 others) as contained in the Consent Judgment of Ogunbowale J of 6/2/2020 are hereby judicially empowered to make up the PMAN’s National Working Committee (NWC) immediately with the power to direct, run and lead the PMAN at the National level and to have supervisory power on PMAN’s State Chapters all over Nigeria.
46. I order that as from 6/2/2020, the effective date of the Consent Judgment of Ogunbowale J of this Court, any National Working Committee of PMAN whether at the National or State level stood dissolved and the Defendants to the Counter-Claimant herein or any person holding himself/herself as the National President of PMAN, whether named or not ceased to hold themselves out as such.
47. The Defendants to the Counter-claims or any other persons are hereby perpetually restrained from parading themselves as President or members of the National Working Committee of the Performing Musicians Employers Association of Nigeria during the subsisting Consent Judgment of Ogunbowale J of this Court made on 6th day of February, 2020 in Suit No. NICN/IB/90/2019.
48. I am constrained not to draw curtain on this Judgment without a comment or two, albeit briefly. I note that the whole gamut of issues in this case revolves around leadership, management and control of PMAN as an association. In their Affidavit in Support of the Originating Summon, the Claimants brought to the fore leadership crisis which they claimed has bedeviled the PMAN in the last 15 years or thereabout. This crisis has resulted in different factions of PMAN approaching the Courts for judicial intervention and solution. In all of this, there has been no judicial intervention as comprehensive, detailed and all encompassing as the Consent Judgment of Hon. Justice Opeloye A. Ogunbowale of 6/2/2020.
48. It must be assumed and I so do that all the parties involved in the PMAN crisis are all members of the Association. It must also be assumed and I again so do, that all these members as important stakeholders are desirous of peace in and progress of PMAN so that it can take its rightful place in the entertainment industry in this country. That being the case, the Consent Judgment of Ogunbowale J of 6/2/2020 provides an ample opportunity for all the stakeholders in PMAN to commence the journey of a New Beginning. Members and stakeholders must therefore put aside personal interest and selfish aggrandizement and support the Court sanctioned present leadership of the Association which can only last for the stated duration. The Consent Judgment of 6/2/2020 in Suit No: NICN/IB/90/2019 is a golden opportunity for all those who desire peace in PMAN to be law abiding and stabilize the Association. The need for an end to litigation is imperative. If the opportunity afforded by the Judgment of Ogunbowale J is lost, there may never be another. I say no more!
49. Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment –
1. All the questions set down by the Claimants/Defendants to the Counter claims are answered in the negative.
2. All the reliefs sought by the Claimants/Defendants to the Counter claims are refused and dismissed.
3. The first and third questions set down by the Defendants/Counter claimants are answered in the affirmative while the second is answered in the negative.
4. I declare that the Defendants/Counter-claimants (Mr. Pretty Okafor and 8 others) can continue to make up the National Working Committee (NWC) that will steer, pilot, direct and lead the day to day activities of the Performing Musicians Employers Association of Nigeria (PMAN) for the period of four (4) years from the 6th day of February, 2020 to 5th day of February, 2024.
5. I declare that the Defendants/Counter-Claimants’ right to the management/leadership of the Performing Musicians Employers Association of Nigeria cannot be interfered with by the Defendants to the Counter-claim or any other persons whether named herein or not during the subsistence of the extant Consent Judgment in Suit No. NICN/IB/90/2019 delivered by Honourable Justice Opeloye A. Ogunbowale on 6th day of February, 2020.
6. The Defendants/Counter-Claimants (Mr. Pretty Okafor and 8 others), (as contained in the Consent Judgment of Ogunbowale J of 6/2/2020), are hereby judicially empowered to make up the PMAN’s National Working Committee (NWC) immediately with the power to direct, run and lead the PMAN at the National level and to have supervisory power on PMAN’s State Chapters all over Nigeria.
7. I order that as from 6/2/2020, the effective date of the Consent Judgment of Ogunbowale J of this Court, any National Working Committee of PMAN whether at the National or State level stood dissolved and the Defendants to the Counter-Claimant herein or any person holding himself/herself out as the National President of PMAN, whether named or not ceased to hold themselves out as such.
8. The Defendants to the Counter-claims or any other persons are hereby perpetually restrained from parading themselves as President or members of the National Working Committee of the Performing Musicians Employers Association of Nigeria during the subsisting Consent Judgment of Ogunbowale J of this Court made on 6th day of February, 2020 in Suit No. NICN/IB/90/2019.
9. All the terms of this Judgment shall be complied with immediately.
50. Judgment is entered accordingly.
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Hon. Justice J. D. Peters
Presiding Judge