Rescue as Leitmotif, Not Relitigation 

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

Rescue the Children, Now

I must join my voice to that of all the others, appealing to Government and all the security agencies to secure the release of every child in Nigeria who is in the hands of terrorist kidnappers. To date, about 91 Chibok girls and Leah Sharibu, the lone remaining Dapchi girl, are unaccounted for, and they appear to have been forgotten. 

On May 15, 2026, 39 children ranging from age 2 to 18, and 7 teachers were kidnapped from 3 schools in Oriire Local Government Area of Oyo State. One of the teachers, Mr Michael Oyedokun was killed in an extremely gruesome manner by the kidnappers. May his soul rest in peace. And, may God comfort the family he left behind. Amen. About 40 children were also kidnapped from school, in Borno State. 

It is more than heartbreaking and heart wrenching, to imagine little children, particularly such small ones, being left to the elements and harsh conditions in the forest for over 2 weeks. They are too small, to be put through such hardship and suffering. No innocent person, at any age, deserves to go through such hell. The dissemination of videos showing the brutal treatment of victims by these terrorists and the execution of Negotiators, is a way of spreading fear amongst Nigerians to gain more power and attention, to create distrust, discontent and possibly, to recruit followers taking advantage of the, “if you can’t beat them, join them” mentality.

The primary purpose of Government, is the security and welfare of the people – see Section 14(2)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution). While we pray for God to take control and protect these innocent children and teachers, and indeed, all those who have been taken into captivity by these kidnappers, we ask Government to do their job. If the same amount of time and energy that is spent by Politicians/Government Officials on plotting to stay or come into power by any means necessary, is devoted to strategising on how to secure the lives of our people, everyone would have been rescued by now. 

Twiddledee and Twiddledum/Hassan and Hussein

If there are any terms that can depict closeness/inseparable pairs even more than Twiddledee and Twiddledum, that’s what we should use to describe All Progressives Congress (APC) and African Democratic Congress (ADC)! They are two peas in a pod. Maybe Hassan and Hussein? Hickory Dickory? Molly Polly? Just as APC counters were jumping from 1 to 1,000 and so on, so did an ADC counter in the North, when counting for Alhaji Atiku Abubakar during the ADC Primaries! We saw the video clips. They all shamelessly worked to the answer. These two political parties are Siamese twins, birds of the same feather, and even if they may quarrel like Tom and Jerry, they are a pair! In fact, irrespective of which party they belong to, majority of Nigerian politicians, with very few exceptions, have rolled off the same assembly line, and they are all members of the Twiddle Family – many peas in one pod! Even in the brand new party, Nigeria Democratic Congress (NDC), there were complaints about how some candidates emerged, with allegations that some positions went to the highest bidders. 

Then, the same people who defect from party to party with fluidity, recycle the same godfatherism, display a gross lack internal democracy in whichever party they belong to, and use the same cheating style to win elections (both internal and external), turn around to bring election petitions, crying foul when they are beaten at their own game and lose at the polls! 

Non-Justiciability of Intra-Party Matters

However, it appears that nomination of candidates is an intra-party affair, so, unsuccessful aspirants can only cry disenfranchisement and rigged primaries; it appears that they cannot go to court. See Section 83(5) of the Electoral Act 2026 (EA). In Kabir v APC & Ors (2024) LPELR-61712(SC) per Ibrahim Mohammed Musa Saulawa, JSC, the Supreme Court held inter alia that: “….the question of membership of a political party and sponsorship of a candidate for an election, squarely falls within the purview and contemplation of domestic affairs of a political party, thus, not justiciable. This proposition of law has been settled and reiterated beyond per adventure by this court, in a plethora of authorities….it is….indeed, a No Go Area for courts, as they lack jurisdiction to delve into such affairs or matters”. See also Anyanwu v Emmanuel & Ors (2025) LPELR-8.0882(SC) per Jamilu Yammama Tukur, JSC. 

The pronouncements of the Apex Court are as clear as crystal, on the justiciability of these two issues – membership of a political party and sponsorship of candidates for election; yet, Lawyers, experienced ones at that, and even Senior Advocates mostly, still take these issues to court repeatedly for adjudication, sometimes deliberately adding a twist to mask issues that are already well established and require no more litigation. To tell the truth, it appears that many of the adults in the room, whether politicians or Lawyers, are responsible for eroding Nigeria’s institutions for their own selfish gain. 

Relitigation of Decided Cases

In the case of relitigating decided cases or issues in Nigerian political cases, at times, the doctrine of Res Judicata or Issue Estoppel may apply, as sometimes, the same/similar parties relitigate the same subject-matters already decided, and this is one of the elements that must exist to plead Res Judicata or Issue Estoppel. ‘Res Judicata’ means ‘a matter judged’; it concerns the legal principle of not relitigating a matter or issue that has already been judged by a court of competent jurisdiction, or settled by the Supreme Court. 

Even if the first element of same/similar parties isn’t fulfilled, the  second and third elements usually obtain in political cases, that is, the matter has been decided on its merits, and the subject-matter of the subsequent case is the same as the one that has been decided upon – see Tiput v Dawamkat & Anor (2025) LPELR-81992  per Ibrahim Mohammed Musa Saulawa, JSC where the Supreme Court held inter alia in respect of Res Judicata that: “The three essential elements are: (1) an earlier decision on the issue; (2) a final judgement on the merits; and (3) the involvement of the same parties, or parties in privity with the original parties…”; also see Anchorage Leisures Ltd & Ors v Ecobank (Nig) Ltd (2023) LPELR-59978 (SC) on Issue Estoppel.

And, even if fresh parties/strangers relitigate decided issues, this is an abuse of court process or violating the principle of ‘stare decisis’, that is, “to stand by things decided and not to disturb settled points” – see Edede v AGF & Anor (2025) LPELR-82109(SC) per Moore Aseimo Abraham Adumein, JSC. In Emenuwe v State (2024) LPELR-62735(SC) per Mohammed Lawal Garba, JSC, the Supreme Court held thus: “It is an abuse of the court’s process to bring an appeal on issues which have been firmly settled by several pronouncements of this Court over the years, merely for the purpose of re-statements of the established principles on the said issues”. So also, is it an abuse for a litigant to relitigate an identical matter that has been decided against him, even if it isn’t res judicata, or matters that are covered by issue estoppel – see Arubo v Aiyeleru & Ors (1993) LPELR-566 (SC) per Philip Nnaemaka-Agu. 

Unfortunately, we will still see a great deal of this vexatious type of abuse of court process, during this new electoral cycle. How do we classify election petitions vis-à-vis res judicata and issue estoppel? Some argue that election petitions are ‘sui generis’ that is, unique, and that repetition may arise because of evolving facts in each scenario. Possibly. But, even though the actual Petitioners/Respondents may be different, their political parties are recurring decimals in petitions, past and present, at least, PDP since 1999, APC since 2015, and along with INEC, they are usually joined as parties, while there are serial Petitioners who jump from party to party, and have been parties in some of these decided cases under different political parties. 

In Obi & Anor v INEC & Ors (2023) LPELR-61532(SC) per Tijjani Abubakar, JSC, on the issue of the nomination of Senator Kashim Shettima as APC’s Vice Presidential Candidate, the Supreme Court held that “….this issue has been dealt with by this Court in PDP v INEC & 3 Ors delivered on the 26th day of May, 2023. Appellants appeal on this point, amounts to an attempt to relitigate the point on nomination of Senator Shettima, this certainly offends the settled position of the law that there must be an end to litigation, this issue having been fully settled by this Court. The Appellant will not be allowed to relitigate this issue….”. This decision appears to establish the principle that, even if the parties are different, the same issue mustn’t be relitigated, particularly when the Supreme Court has decided on it. 

For instance, in Nyesom Wike v Dr Dakuku Peterside, APC, INEC & PDP (2016) LPELR-40036 (SC) per Kudirat Kekere-Ekin, JSC (now CJN), the Apex Court held that a Petitioner complaining of non-compliance with the Electoral Act “must prove it polling unit by polling unit, ward by ward, and the standard of proof is on the balance of probabilities. He must show figures that the adverse party was credited with, as a result of the non-compliance”. But, in Obi & Anor v INEC & Ors (Supra), the Petitioner had alleged non-compliance with the Electoral Act 2022 (EA 2022), questioning the results in over 18,000 polling units. But, instead of proving it “polling unit by polling, ward by ward”, the Petitioner had only 13 witnesses, out of which only 3 filed their witness statements on oath along with the Petition and testified, contrary to Paragraph 4(5)(b) 1st Schedule to the EA 2022. 3 witnesses, even if it was 13, testifying about 18,000 polling units where they weren’t physically present, based on third-party information amounts to relying on hearsay say evidence, which is inadmissible in court – see Sections 37 & 38 of the Evidence Act 2011; Okoro v State (1998) LPELR-2493(SC) on the inadmissibility of hearsay evidence. The Presidential Election Petition Tribunal had observed that specific polling units weren’t named, nor were alleged authentic results provided; the polling agents who were alleged to have complained about the results weren’t named or called as witnesses. In short, the standard of proof set in Nyesom Wike v Dr Dakuku Peterside, APC, INEC & PDP (Supra) was not met with regard to non-compliance in Obi’s case, as the Petitioner failed to adduce the requisite evidence; yet, the petition was still brought to court, with full prior knowledge that they hadn’t met the necessary threshold of proof. This is an abuse of court process.  

In a jurisdiction such as UK, Counsel that attempts to relitigate issues that have already been settled by the Supreme Court, or bring only 5 items instead of the 500 items that may have been established by the Supreme Court to be required to maintain an action, apart from the fact the lower court must swiftly strike out such matters, Counsel that filed such a frivolous case may face disciplinary action from their professional body, and both Counsel and Client can face financial penalties, such as paying heavy costs to opponent’s Counsel, as such behaviour undermines the principle that there must be finality to litigation. It is also a waste of valuable judicial time. 

The Jonathan Eligibility Case

Recently, in a case filed at the Federal High Court, Abuja, seeking to disqualify former President Goodluck Jonathan, GCFR from running in the 2027 Presidential election, Justice Lifu upheld President Jonathan’s eligibility to run and struck out the case, following the UK pattern by awarding N21 million costs against the Plaintiff, N20 million payable to President Jonathan and N1 million to the Attorney-General of the Federation. Justice Lifu cited the previous judgements of the Federal High Court, Yenagoa and the Court of Appeal, stating that the present case is an abuse of court process and that the Court of Appeal being a superior court, the Federal High Court is bound by the doctrine of stare decisis. This aligns with the principles against relitigating of settled issues, respecting judicial precedent and penalising abuse of court process.

Conclusion 

The kidnapping and terrorist epidemic crisis in Nigeria, is a national shame. The recent Oyo incident shows how far this epidemic has spread, nationwide. There must be targeted forest clearance and combing, to fish out these criminals from their hideouts across the country’s forests, while a better school protection framework including perimeter fencing, CCTV, trained security, amongst others, must be deployed to schools, particularly soft targets in the rural areas. The welfare of the most vulnerable, children, must be a priority, over and above political machinations. There must be more preventive measures and effective rescue, as opposed to a recourse to regular ransom payments, that make this criminal enterprise more attractive to these wicked criminals. Though, the truth is that, out of desperation, any parent or person in such a position would do anything to secure the release of their loved ones, even paying ransoms.

The incessant spectacle of politicians defecting from one political party to another like interchangeable twins, while Lawyers relitigate settled Supreme Court issues which amounts to abuse of court process, only deepens institutional decay and erodes public trust. It is time for the courts to discourage frivolous litigation through heavy costs and discipline, while the legal profession should endeavour to uphold higher standards like in UK and Canada, by coming down heavily on its erring members who engage in this unholy practice. Only then will the “go to court” taunt which has become a common joke, even for nonsensical cases and 1000 election petitions out of which only a few can be proved, will be curbed. 

According to PLAC analysis, for the 2023 election petitions, almost 90% of them failed, and just over 70% failed because the requisite burden of proof couldn’t be discharged. It is against the Rules of Professional Conduct for Lawyers to pursue frivolous actions, particularly when they know they cannot discharge the evidentiary burdens. As Counsel, it is not enough to claim to be doing your client’s bidding, as such behaviour can amount to professional misconduct, which when punished accordingly, will serve as a much needed deterrent.