A Federal High Court (FHC), Abuja, on Monday, awarded a N10 million fine against the detained Islamic cleric, Sheikh Abdul-jabbar Kabara, for filing a fundamental rights enforcement suit considered to be an abuse of court process.
Justice Emeka Nwite, in a judgment, directed that the money should be paid to the respondents in the suit; the Upper Sharia Court Kofa Kudu, Kano, and Kano State government.
They are the 1st and 2nd respondents respectively.
Justice Nwite also awarded the sum of N100, 000 against Kabara and to be paid by his counsel, Shehu Dalhatu, to the state government.
The judge said that once a court is satisfied that a suit is an abuse of court process, the court has the right to punish the applicant.
He said that the action of the counsel to Kabara was aimed at getting a favourable judgment at all cost.
Nwite said that filing a matter in a suit number:FHC/KN/CS/185/2022 in Kano and coming to Abuja to file another marked: FHC/ABJ/CS/1201/2022 on the same matter by the same lawyer was condemnable.
He stated further that the reliefs sought by Kabara before Kano FHC for an order to enforce his fubdamental rights and quash the charge before the Sharia Court were the same as the ones sought before the Abuja court.
According to him, a party cannot be filing different actions flowing from the same transaction.
“A cause of action cannot be instituted in a fragmented manner.
“This is an abuse of the court process having filed same charge in Kano.
“The applicant counsel’s action is not only repulsive but an organised vendetta against the court,
“With due respect to counsel, his argument is watery.
“No matter how ingenious the counsel will want the court to believe that this is not an abuse of court process, such effort will be a sheer waste of time.
“The affidavits giving to the suit are the same with the others before Kano court
“The same issue, the same cause, the same counsel. I must express my displeasure with the counsel,” he said.
According to the judge, there is no iota of law supporting the present suit.
Nwite, who recalled that the Supreme Court had once came heavily on two senior advocates of Nigeria for abusing court process, described the act as a “total disregard to judicial process.”
He, consequently, dismissed the suit for being an abuse of court process.
In the originating motion marked: FHC/ABJ/CS/1201/2022 dated and filed July 25, the cleric had sought an order enforcing his fundamental human right by moving to the court for the purpose of it being quashed the charge and the entire proceedings of the Sharia Court against him, via a case number CR/01/2021, being conducted against his constitutional rights to fair hearing.
He also prayed for an order quashing the charge being conducted against his constitutional right to personal liberty.
In the affidavit in support of the motion, a co-counsel, Ibrahim Paki, deposed that he had the consent of the cleric who is under detention to make the deposition.
Paki averred that Kabara had spent more than a year in detention on the order of the Sharia Court “without bail, over a trial which is politically motivated, by which the 2nd respondent (Kano State government) framed a charge against him, alleging him to have blasphemed the Holy Prophet, when he did not.”
The lawyer said the record of proceedings to that effect together with English translation of same were attached and marked as Exhibits 1 A and B respectively.
Paki further averred that the cleric had spent more than 30 years in preaching and that he inherited it from his father and never was he found to denounces his faith known with.
“The applicant (Kabara) happened to be a cleric, a leader of an Islamic sect, with more than two million followers known as Ashabul-kahfi, whom by their belief and practices do not like the governor now in power in Kano State and they do not support his political popularity.
“That in addition to the above, there are other Islamic religious sects that are scared about the growing influence of the applicant among the youths of Kano and outside the state, as such they want a way by all means to uproot it,” he said.
Paki alleged that the state government and “other antagonists” conspired and framed up a criminal charge against the cleric.
“That the 2nd respondent maliciously spread the rumour against the applicant parading him to have blasphemed the Holy Prophet Mohammed (SAW)
and charged him to court as such, before the 1st respondent which incarcerated him to date,” he alleged.
The lawyer also accused the Sharia Court judge of belonging to one of the sects that are against Kabara’s ideology.
He said against this backdrop, Kabara raised the issue of likelihood of bias before the Sharia Court Kofa Kudu, Kano and applied for his case to be transferred to another court.
He alleged that this issue was ignored by the court and went-on with the trial.
“That the charge, instead of quoting where the applicant blasphemed the Holy Prophet as alleged, it only reflects where the applicant allegedly gives wrong interpretation of the prophetic traditions, irrespective of the applicant’s constitutional right to freedom of thoughts, conscience, religion and belief.
“That the applicant is ready to justify, clarify or explain the basis of his belief and thoughts over the prophetic traditions he interpreted to the satisfaction of every one, but that should not be the subject matter of litigation, let alone a criminal proceeding, as it is going on now before the 1st respondent,” he averred.
Paki, who said Kabara’s constitutional rights had been violated and would continue to be violated before the Sharia Court, alleged that the presiding judge had a personal involvement in the matter.
He urged Justice Nwite to grant their application “as the respondents and their allied are not mindful of the law and justice; they are just very eager and desperate to terminate the life and all activities of the applicant by the illegal trial.”
But in a preliminary objection dated July 29 and filed Aug. 1, the Sharia Court and Kano State government prayed the court to dismiss the suit for being incompetent.
In a four grounds given by the respondents, they argued that the present suit is an abuse of court process since there is an existing and similar action pending at the FHC, Kano in suit number FHC/KN/CS/185/2022 between the same parties.
They further argued that the Abuja court lacked jurisdiction to hear and determine the suit as necessary parties had not been joined to maintain and determine the action.
“This honourable court lacks the power and competence to determine this suit as the subject matter and reliefs sought revolve around a Sharia Penal Code criminal charge and prosecution under a Sharia Court in Kano State.
“That the applicant (Kabara) did not present a complete record of proceedings of the 1st respondent (Sharia Court) to enable this honourable court properly determine this action on the merit,” they argued.
When the matter came up on August 2, Abdussalam Saleh, who held the brief for the Attorney-General of Kano State, urged Justice Nwite to discountenance all the arguments of Dalhatu, lawyer to Kabara, and dismiss the application with a substantial cost.
