JOHNSON & ANOR v. EZE & ANOR (2020)

JOHNSON & ANOR v. EZE & ANOR

(2020)LCN/14181(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Monday, May 18, 2020

CA/C/159/2019

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Philomena Mbua Ekpe Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

1.FRANCIS O. JOHNSON 2.PETROLEUM AND NATURAL GAS SENIOR STAFF ASSOCIATION OF NIGERIA (PENGASSAN) APPELANT(S)

And

1.COMRADE EMMA EZE 2.COMRADE ABDULLAHI SALE RESPONDENT(S)

RATIO

THE APPLICABILITY OF THE SHERIFFS AND CIVIL PROCESS ACT TO THE NATIONAL INDUSTRIAL COURT OF NIGERIA

There are myriads of cases in which the apex Court had given judicial pronouncements on the provisions of the Sheriffs and Civil Process Act, particularly Sections 97 – 98 thereof. I therefore do not intend to over-flog the point except to bring out some salient points where necessary.
In Owners of the M.V. Arabella Vs NAIC (supra) the Supreme Court considered the provision of Sections 97 and 19(1) of the Sheriffs and Civil Process Act. The Sheriffs and Civil Process Act as rightly stated by the 1st appellant is an Act that make provision for the appointment and duties of Sheriffs, the enforcement of judgment and orders, and the service and execution of civil process of the Courts throughout Nigeria. In Section 2 of the Act, which is the interpretation section, “Courts” is defined to “includes a High Court and a Magistrate Court”. It was emphatically held that the provisions of Section 97 of the Act are applicable in all High Courts, including the Federal High Court. In his concurring judgment, George Adesola Akintan, JSC said: –
“The said provisions, in my view, have nothing to do with the coverage of the jurisdiction of the Federal High Court which is nationwide. It is therefore a total misconception to believe that the provisions of the section are applicable to the Federal High Court because the jurisdiction of that Court covers the entire nation.”
Also in both the cases of CBN Vs Interstella Communication Ltd and Izeze VS INEC (Supra), the provisions of the Sheriffs and Civil Process Act was held to be mandatory and applicable to the Federal High Court on the ground that the Sheriffs and Civil Process Act is an Act of the National Assembly, while the Federal High Court (Civil Procedure Rules) is a subsidiary legislation, a byelaw, inferior to an act of the national Assembly.
However, in Biem Vs SDP (2019) 12 NWLR (Prt 1687) 377 at 405 -406, it was held that the principal legislation that deals with services of the Court process is the Sheriffs and Civil Process Act in respect to the State High Courts and the FCT High Court because their jurisdiction is circumscribed by the territory each state occupies and the Federal Capital territory. Thus, the service of any process issued by the Federal High Court can be carried under the Sheriffs and Civil Process Act, if such service is to be executed outside the territory of Nigeria. To that extent, an originating summons which was issued and to be served within the territory of Nigeria cannot be considered to be service outside jurisdiction and therefore does not require the leave of Court and or be endorsed as a concurrent writ in view of Section 19(1) of the Federal High Court Act and Order 6 Rule 31 of the Federal High Court (Civil Procedure Rules, 2009).
In the same vein, the Supreme Court has recently held in Omajali Vs David (2019) 17 NWLR (Prt 1702) 438 at 458-459 that for the purpose of service of Court processes be they originating or otherwise, the Federal High Court has and exercises jurisdiction throughout the country and a party does not require leave for such processes to be served within Nigeria.
It is pertinent to note at this juncture that the service in issue is an originating summons issued out at the Registry of the National Industrial Court, Calabar for service at Lagos. Also, the provision of Section 19(1) of the Federal High Court Act being considered in the above last two cases are in pari material with Section 21(1) and (2) of the National Industrial Court Act which provides that the Court shall have and exercise jurisdiction throughout the federation and for that purpose it shall be regarded as a single Court irrespective of the judicial division where it is situated. Order 7 Rule 15(1) and (2) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 provides as follows: –
“The National Industrial Court has one jurisdiction throughout the Federal Republic of Nigeria and is only divided by the president of the Court into judicial divisions, or registries for adjudicatory or administrative convenience. All originating processes or other Court process filed by any party before the Court shall be served on any other party in any part of the federation without leave of Court.”

Learned counsel for the appellants has strenuously argued that the provisions of the National Industrial Court (Civil Procedure) Rules 2017 cannot by any stretch of imagination oust the application of the Sheriffs and Civil Process Act. Perhaps it need to be stated that both the Sheriffs and Civil Process Act as well as the National Industrial Court Act are Acts of the National Assembly and therefore standing an equal pedestal. The rules of Court though a subsidiary legislation but the power to make rules of Court is rooted from the Constitution of the Federal Republic of Nigeria 1999 (as amended). See Section 254(1) of the said Constitution. At any rate, the Supreme Court having settled the issue on the application of the provisions of the Sheriffs and Civil Process Act pertaining to service of processes at the federal Courts, the learned trial judge was therefore on a right footing when he concluded at page 213 of the record ofappeal thus:-“From the foregoing, it is obvious that in the eyes of the National Industrial Court of Nigeria, the federation known as Nigeria is one state and the only state other than Nigeria is foreign country. Therefore, the application of Sections 97 and 99 of the Sheriffs and Civil Process Act is only applicable to this Honourable Court only to the extent that the service of the originating process is outside Nigeria, and I so hold.” PER SHUAIBU, J.C.A.

WHETHER OR NOT THE COURT CAN ENTER INTO INTRICACIES OF ANY ISSUE WHICH WILL AMOUNT TO AN ACADEMIC EXERCISE

This Court will refrain and refuse to enter into intricacies of any issue which will in the end amount to academic exercise. In Nwobosi Vs ACB Ltd (1995) 6 NWLR (Prt 404) 658 at 681, the Supreme Court has held that where the resolution of an issue one way or the other will be no more than engaging in an academic exercise, it will not entertain such an issue. See Fawehinmi Vs Akilu(1987) 4 NWLR (Prt 67) 799 and Global Transoceanic Vs Free Ent. Ltd. (2001) 2 SC 154 at 165. PER SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the National Industrial Court, Calabar Division delivered on 25th January, 2018 wherein the Court dismissed the appellant’s preliminary objection challenging the competence of the suit and the jurisdiction of the trial Court to entertain the suit.

In Suit No. NICN/CA/53/2017, Comrade Emma Eze Vs Comrade Abdullahi Sale & 2 Ors, the 1st respondent sued the 2nd respondent as 1st defendant together with 1st and 2nd appellants as 2nd and 3rd defendants respectively seeking for declaration and injunctive reliefs. The appellants as 2nd and 3rd defendants upon being served with originating processes, entered conditional appearance and filed a motion on notice seeking for an order striking out the suit for want of jurisdiction.

After taking argument from both sides and in a considered ruling delivered on 25th January, 2018, learned trial judge dismissed the application in the following words: –
“This Court wishes to state that election matters are by their nature peculiar and once an aggrieved party has approached an Electoral Panel set

up for that purpose, especially if the said panel was internally set up, he has a right to approach or appeal such decision at a regular competent Court of jurisdiction if he is dissatisfied with the decision of the Electoral Panel and I so hold. In this vein, this Court finds and I so hold that, the claimant being dissatisfied with the decision of the Electoral Panel has a right to approach this Court for redress/review of the decision of the Electoral Panel. For all that have been said above, the application of the defendants/applicants fails and same is hereby dismissed.”

Dissatisfied with the above ruling, appellants appealed to this Court through a notice of appeal filed on 16th April, 2019 vide a leave granted by this Court on 9th April, 2019. The said notice of appeal contains five (5) grounds of appeal at pages 223-226 of the record of appeal.

Parties filed and exchanged briefs of argument. At page 5 of the appellant’s brief of argument settled by George E. Ukaegbu, Esq, appellants formulated the following three issues for the determination of this appeal: –
1. Whether the provisions of Sections 97 and 99 of the Sheriffs and Civil Process Act, Cap. 5, LFN 2004 are applicable to

proceedings before the National Industrial Court of Nigeria. (Distilled from grounds 1 and 2).
2. Whether the commencement of Suit No. NICN/53/2017 before the Calabar Division of the National Industrial Court of Nigeria does not amount to forum shopping and an abuse of Court process. (Distilled from grounds 3 and 4).
3. Whether this suit is not incompetent by reason of the 1st respondent failure to exhaust the internal dispute resolution mechanism of the 2nd appellant before commencing the suit. (Distilled from ground 5).

In his brief of argument, settled by Ginika Ezeoke, Esq, the 1st respondent adopts the three issues formulated by the appellant.

In his brief of argument on issue one, learned counsel for the appellant submitted the decision of the learned trial judge to the effect that Sections 97 and 99 of the Sheriff and Civil Process Act are not applicable to the National Industrial Court is an affront to the Constitution of the Federal Republic of Nigeria, 1999 (as amended). He referred to item 57 of Part 1 of the Second Schedule which donates the power to the National Assembly to

legislate on the provision for the appointment and duties of sheriffs, the enforcement of judgments and orders and the service and execution of civil process of the Courts throughout Nigeria.

Learned counsel also referred to Section 254(D) to contend that the National Industrial Court is placed on the same pedestal as the states and Federal High Courts established under the same Constitution and thus fall under Section 2 Sheriffs and Civil Process Act. Although the President of the National Industrial Court is empowered to make Rules for regulating the practice and procedure of the Court pursuant to Section 254(F) of the 1999 Constitution (as amended) and Section 36 of the National Industrial Court Act, 2006, but it was submitted that such powers do not include the power to make rules relating to matters under the Exclusive Legislative List of the 1999 Constitution. He referred to F.R.N. Vs Dariye (2011) LPELR – 4151, Oloruntoba – Oju Vs Abdulraheem (2009) 13 NWLR (Prt 1157) 83 at 138-139 and NNPC Vs Famfa Oil Ltd. (2012) 17 NWLR (Prt 1328) 148 in contending that both Section 254 F(1) and the National Industrial Court (Civil Procedure) Rules

are subject to the provisions of the Sheriffs and Civil Process Act. Hence, inferior, dependent or limited and restricted, in application to the section to which they are made to subject to it.

He further submitted that Sections 97 and 99 of the Sheriffs and Civil Process Act are couched in mandatory words and once the claimant fails to comply with the mandatory provision of Sections 97 and 99 of the Sheriffs and Civil Process Act, the Court would no longer have jurisdiction to adjudicate on the suit. In aid, learned counsel relied on the authority in the cases ofOwners of the MV Arabella Vs Naic (2008) 17 NWLR (Prt 1097) 182, Central Bank of Nigeria Vs Interstella Communications Ltd & 3 Ors (2018) 7 NWLR (Prt 1618) 294 and Izeze Vs INEC (2018) 11 NWLR (Prt 1629) 110.

In his reply, learned counsel for the 1st respondents referred copiously to the provisions of Sections 97, 98 and 99 of the Sheriffs and Civil Process Act and submitted that where a statute mentions specific items, among many other possible alternatives, the intention of the law is that those not named are excluded. And having expressly specified and defined the Courts to be the

magistrate Courts and High Courts, other Courts such as the National Industrial Court are excluded. Thus, the Sheriffs and Civil Process Act is only intended to apply to Courts such as Magistrate Court and High Courts whose processes are issued and intended for service outside the territorial jurisdiction of the state where the Court is situate.

Still in argument, learned counsel submitted that the National Industrial Court Act, 2006 is equally an act of the National Assembly which was enacted to govern the proceedings of the Court pursuant to which the president of the Court is empowered to make rules of procedures applicable to the Court. He referred to Section 21 (i) and (ii) of the National Industrial Court Act which provides that the jurisdiction of the Court is the whole area of the federation. It was also the contention of the respondents that vide Section 36 (1) and (2) of the Act, the powers of the president of the Court extends to making rules regulating the service or execution of any writ, warrant, order or other processes, issuing out of Court, the payment of mileage allowance before or after service or execution, the conditions precedent

before any such process of certain classes will be served or executed and the procedure to be followed after the service of such process.

In further argument, learned counsel submitted that the Rules of the Court have the force of law and being a subsidiary legislation made pursuant to Section 254 F (1) of the Third Alteration of the 1999 Constitution (as amended) same is a continuation of the tone set by the National Industrial Court Act which dispensed the application of Sections 97, 98 and 99 of the Sheriffs and Civil Process Act. He referred to Omatseye Vs F.R.N. (2017) LPELR – 42719 and NNPC Vs Famfa Oil Ltd. (Supra).

It was finally submitted by the respondents that in both the cases of Owners of M.V. Arabella Vs NAIC and Izeze VS INEC (Supra), the apex Court did not consider the peculiar provisions of Sections 21 and 36 of the National Industrial Court Act and therefore the said decisions cannot be an authority to the present case. Learned counsel placed reliance on the case of Biem Vs Social Democratic Party (Appeal NO. SC/341/2019) delivered on 14th May, 2019 to the effect that an originating process issued by the Federal High Court in

one territorial jurisdiction (within Nigeria) cannot be considered to be a service outside jurisdiction and therefore is not required to be endorsed for service outside a state and marked accordingly as a concurrent writ and neither would it be necessary to seek the leave of Court.

On issue two, learned counsel for the appellants argued that the cause of action in this suit arose in Abuja and the appellants and 2nd respondent resides and carries on business in Lagos and therefore instituting this suit at the Calabar Division of the National Industrial Court amount to forum shopping. He submitted that the fact that the National Industrial Court has a nation-wide coverage does not vest the Court with jurisdiction to try matters that occur outside its jurisdiction. He referred to Ibori Vs F.R.N. (2009) 3 NWLR (Prt 1120) 283, Mailantarki Vs Tango (2017) LPELR – 42467 and NDIC Vs UBN (2015) LPELR – 24316.

On his part, learned counsel for the respondents contended that to attract judicial decision, there must be in existence controversy between the litigants. And where there is no contest or where the decision will serve no purpose, the Courts do

not delve into such issues. He contended further that there cannot be a live issue if circumstances change or arise after litigation started. Thus, the facts leading to this issue have since changed as the suit previously pending before the National Industrial Court; Calabar has since been transferred to the National Industrial Court, Abuja. He referred to Umanah Vs Attah & Ors (2006) LPELR – 3356 and A.G. Federation Vs ANPP (2003) 18 NWLR (Prt 851) 215 in submitting that there cannot be said to be a live issue in a litigation if what is presented to the Court for a decision, when decided, cannot affect the parties thereto in any way either because of the fundamental nature of the reliefs sought or of changed circumstances since after the litigation started. That in the case of an appeal, the appeal may become academic at the time it is due for hearing even though originally there was a living issue between the parties.

On the third issue, learned counsel for the appellant contended that Courts do not make constitutions and or guidelines for political parties. Constitutions and guidelines are made by members of political parties to regulate the

conducts of their affairs and those of their members. He thus submitted that where steps stated in Schedule 3 of the 2nd appellant’s Constitution has not been followed to the letter, it cannot be said that the internal dispute mechanism of the 2nd appellant has been exhausted.

He submitted further that though the trial Court was right in its view that the 2nd appellant’s delegate conference is the highest decision making body in dispute resolution, it however failed to take cognizance of the step by step process of the dispute resolution provided under Schedule 3 of the 2nd appellant’s constitution. He referred toSaude Vs Abdullahi (1989) 4 NWLR (Prt 116) 387 to the effect that where a law provides for a procedure for doing an act, that procedure must be followed for the subsequent act to be valid.

Responding to the above, learned counsel to the respondents conceded all internal disputes in the 2nd appellant shall be subjected to internal dispute resolution process contained in Schedule 3 thereof. He however submitted that the grouse of the 1st respondent being one that arose from the conduct of elections, same is to be resolved

in accordance with the provisions of Rules 11.3.21, 11.3.22 and 11.3.23 of the 2nd appellant’s constitution which specifically deals with disputes and issues arising from the conduct of election as opposed to Rule 28:1 and Schedule 3 which pertains general disputes depending on the organ such dispute emanates. Thus, having exhausted the internal dispute resolution, mechanism provided in Rules 11.3.21 – 11.3.23 of the 2nd appellant’s constitution following which a decision was reached and dissatisfied, the 1st respondent filed the suit before the lower Court that culminated to this appeal.

It was further submitted that where there exist a general provision and a specific provision in a statute for the same purpose, the specific provision supersedes the general provision in resolving the specific issues related to the specific provision. Reliance was placed to the case of Inakoju & Ors Vs Adeleke & Ors (2007) LPELR – 1510 to contend that the dispute in the instant case arose out of election conducted at the National delegate conference and same is to be resolved in accordance with the specific provisions of the 2nd

appellant’s constitution.

Assuming but not conceding the fact that the 1st respondent is bound by the provisions of Rule 28.1 and Schedule 3 to the 2nd appellant’s Constitution, it was submitted that the 1st respondent has equally exhausted the internal dispute resolution mechanism stated therein. In effect, that since the election was conducted by the National Delegates Conference after which it constituted the Election Petition Panel, the Election Petition Panel enjoys the same status as the National Delegates’ Conference. Hence, the decision of the panel is final and cannot be reviewed by any other organ of the 2nd appellant except to approach the Court for redress.

RESOLUTIONS
Issue one questions the applicability of the provisions of the Sheriffs and Civil Process Act to the National Industrial Court of Nigeria particularly Section 97 – 99 thereof.
To start with the provisions of Section 97 of the Sheriffs and Civil Process Act deals mainly with endorsement of originating process that is to be served in a state where the Court through which the process is issued is situated. The said Section 97 of the Sheriffs and Civil Process Act provides as follows:-

“Every writ of summons for service under this part out of the state or the capital Territory in which it was issued shall in addition to any other endorsement or notice required by the law of such state or the Capital territory have endorsed therein a notice to the following effect (that is to say):- this summons (or as the case may be) and in the state (or as the case may be).”
Section 98 deals with concurrent writs and it states: –
“A writ of summons for service out of the state or the capital territory in which it was issued as a concurrent writ with the one for service within such state or capital territory and shall in that case be marked as concurrent.”
Finally, Section 99 of the Act is on time limited for answering to summons. It provides thus: –
“The period specified in a writ of summons for service under this part as the period within which a defendant is required to answer before the Court to the writ of summons shall be not less than thirty days after service of the writ has been effected or if a longer period is prescribed by the rules of the Court

within which the writ of summons is issued, not less than that longer period.”
As earlier stated that the gist of the appellants’ complaint on issue one is whether in the light of the provision of Sections 254 (A), 254 D (1) and Item 57 of Part 1 of the Second Schedule of the 1999 Constitution that places the National Industrial Court on the same level as the state and federal High Courts established under the Constitution, then Section 2 of the Sheriffs and Civil Process Act, which defines “Court” also applies to the National Industrial Court.
There are myriads of cases in which the apex Court had given judicial pronouncements on the provisions of the Sheriffs and Civil Process Act, particularly Sections 97 – 98 thereof. I therefore do not intend to over-flog the point except to bring out some salient points where necessary.
In Owners of the M.V. Arabella Vs NAIC (supra) the Supreme Court considered the provision of Sections 97 and 19(1) of the Sheriffs and Civil Process Act. The Sheriffs and Civil Process Act as rightly stated by the 1st appellant is an Act that make provision for the appointment and duties of

Sheriffs, the enforcement of judgment and orders, and the service and execution of civil process of the Courts throughout Nigeria. In Section 2 of the Act, which is the interpretation section, “Courts” is defined to “includes a High Court and a Magistrate Court”. It was emphatically held that the provisions of Section 97 of the Act are applicable in all High Courts, including the Federal High Court. In his concurring judgment, George Adesola Akintan, JSC said: –
“The said provisions, in my view, have nothing to do with the coverage of the jurisdiction of the Federal High Court which is nationwide. It is therefore a total misconception to believe that the provisions of the section are applicable to the Federal High Court because the jurisdiction of that Court covers the entire nation.”
Also in both the cases of CBN Vs Interstella Communication Ltd and Izeze VS INEC (Supra), the provisions of the Sheriffs and Civil Process Act was held to be mandatory and applicable to the Federal High Court on the ground that the Sheriffs and Civil Process Act is an Act of the National Assembly, while the Federal High Court (Civil

Procedure Rules) is a subsidiary legislation, a byelaw, inferior to an act of the national Assembly.
However, in Biem Vs SDP (2019) 12 NWLR (Prt 1687) 377 at 405 -406, it was held that the principal legislation that deals with services of the Court process is the Sheriffs and Civil Process Act in respect to the State High Courts and the FCT High Court because their jurisdiction is circumscribed by the territory each state occupies and the Federal Capital territory. Thus, the service of any process issued by the Federal High Court can be carried under the Sheriffs and Civil Process Act, if such service is to be executed outside the territory of Nigeria. To that extent, an originating summons which was issued and to be served within the territory of Nigeria cannot be considered to be service outside jurisdiction and therefore does not require the leave of Court and or be endorsed as a concurrent writ in view of Section 19(1) of the Federal High Court Act and Order 6 Rule 31 of the Federal High Court (Civil Procedure Rules, 2009).
In the same vein, the Supreme Court has recently held in Omajali Vs David (2019) 17 NWLR (Prt 1702) 438 at

458-459 that for the purpose of service of Court processes be they originating or otherwise, the Federal High Court has and exercises jurisdiction throughout the country and a party does not require leave for such processes to be served within Nigeria.
It is pertinent to note at this juncture that the service in issue is an originating summons issued out at the Registry of the National Industrial Court, Calabar for service at Lagos. Also, the provision of Section 19(1) of the Federal High Court Act being considered in the above last two cases are in pari material with Section 21(1) and (2) of the National Industrial Court Act which provides that the Court shall have and exercise jurisdiction throughout the federation and for that purpose it shall be regarded as a single Court irrespective of the judicial division where it is situated. Order 7 Rule 15(1) and (2) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 provides as follows: –
“The National Industrial Court has one jurisdiction throughout the Federal Republic of Nigeria and is only divided by the president of the Court into judicial divisions, or registries for

adjudicatory or administrative convenience. All originating processes or other Court process filed by any party before the Court shall be served on any other party in any part of the federation without leave of Court.”
Learned counsel for the appellants has strenuously argued that the provisions of the National Industrial Court (Civil Procedure) Rules 2017 cannot by any stretch of imagination oust the application of the Sheriffs and Civil Process Act. Perhaps it need to be stated that both the Sheriffs and Civil Process Act as well as the National Industrial Court Act are Acts of the National Assembly and therefore standing an equal pedestal. The rules of Court though a subsidiary legislation but the power to make rules of Court is rooted from the Constitution of the Federal Republic of Nigeria 1999 (as amended). See Section 254(1) of the said Constitution. At any rate, the Supreme Court having settled the issue on the application of the provisions of the Sheriffs and Civil Process Act pertaining to service of processes at the federal Courts, the learned trial judge was therefore on a right footing when he concluded at page 213 of the record of

appeal thus:-
“From the foregoing, it is obvious that in the eyes of the National Industrial Court of Nigeria, the federation known as Nigeria is one state and the only state other than Nigeria is foreign country. Therefore, the application of Sections 97 and 99 of the Sheriffs and Civil Process Act is only applicable to this Honourable Court only to the extent that the service of the originating process is outside Nigeria, and I so hold.”

That being the case, issue one is resolved against the appellants.

On issue two, the main contention is that the institution of the suit giving birth to this appeal before the Calabar Division of the National Industrial Court tantamount to forum shopping and abuse of Court process.
It is beyond argument that the cause of action arose in Abuja and the 2nd respondent sued as defendant together with other defendants all resides and carry on business in Lagos. Thus, there is no connection between the place the cause of action arose or any of the parties and Calabar where the 1st respondent chose to commence the suit.
Forum shopping refers to the practice of choosing the most favourable Court in

which a matter or cause may be entertained or adjudicated upon. In both the cases of Ibori Vs FRN and Mailantarki Vs Tongo (supras) this Court has deprecated the attitude of choosing a forum convenience of instituting actions. In the instant case, the learned trial judge misunderstood the concept of forum shopping when he held at page 214 of the record of appeal as follows: –
“Therefore, in argument on forum shopping, the question the Applicant ought to answer is whether or not any of the defendants reside or has presence in Calabar or carries on besides in collaboration. To put it succinctly, the question is irrespective of the address of service, does any of the defendant particularly PENGASSAN has presence in Calabar? If the answer is in the negative, then the Applicants can apply for transfer of this suit in line with the National Industrial Court Act.
Learned counsel for the appellants has submitted and I am in complete agreement with his submission that having demonstrated that on the face of the originating summons, the cause of action arose in Abuja and the appellants and the 2nd respondent sued as defendant reside and carry on business

in Lagos, one is left without doubt that the institution of this suit in Calabar Division of the National Industrial Court amounts to forum Shopping.

It was however contended by the 1st respondent and rightly in my view that the suit pending before the Calabar Division having been transferred to Abuja Division of the Court, there is no more dispute to be decided. There cannot be said to be a live issue if circumstances change since after litigation started. Likewise, an issue or the entire appeal may become academic at the time it is due for hearing even though there was a live issue at the time the appeal was filed.
In view of the fact that the suit had since been transferred from the Calabar Division of the National Industrial Court to Abuja Division of the Court which fact has not been disputed by the appellants, issue two does not advance the case of the appellants any further. This Court will refrain and refuse to enter into intricacies of any issue which will in the end amount to academic exercise. In Nwobosi Vs ACB Ltd (1995) 6 NWLR (Prt 404) 658 at 681, the Supreme Court has held that where the resolution of an issue one way or the other will

be no more than engaging in an academic exercise, it will not entertain such an issue. See Fawehinmi Vs Akilu(1987) 4 NWLR (Prt 67) 799 and Global Transoceanic Vs Free Ent. Ltd. (2001) 2 SC 154 at 165. Issue two being an academic issue is therefore resolved against the appellants.

The complaint in issue three is centered on the internal dispute resolution mechanism of the 2nd appellant before commencing the suit. The appellants’ main contention here is that even though the 2nd appellant’s delegates conference is the highest decision making body in dispute resolution but there was apparent failure by the 1st respondent to follow the step by step process of dispute resolution provided for under Schedule 3 of the Constitution of the 2nd appellant.

It is a notorious fact that constitutions and guidelines are made by members of political parties or associations to regulate the conducts of their affairs. And once made and agreed upon, the constitutions and guidelines become binding. In PDP Vs Oranezi (2018) 7 NWLR (Prt 1618) 245 at 260n- 261, the Supreme Court held that adherence to the prescriptions in the Electoral Act and the constitutions of

political parties is the only sure way to the attainment of political maturity in the democratic experiment in Nigeria. Therefore, Courts would brook no arbitrary or capricious conduct of political parties in such questions like selection or nominated of candidates in clear indifference to the constitutive Act namely, the Electoral Act, and their prevailing guidelines.

In the instant case, the issue at stake was the election of the national Officers of the 2nd appellant (PENGASSAN) wherein the 1st appellant and 1st respondent contested into the post of president. The 1st respondent lost out to the 1st appellant who subsequently commenced an action at the lower Court. The question is, has the 1st respondent exhausted the internal dispute mechanism of the 2nd appellant before instituting the said suit. Rules 11.3.20 of the 2nd appellants’ constitution deals with election petitions panel and processes. Rules 11.3.21 – 11.3.23 specifically provides as follows:-
“11.3.21 The National, Zonal or Branch Delegates conference in session shall prior to the dissolution of the existing executive committee constitute a five-man Electoral petition

panel for National and three-man for Zonal and Branches that would receive petitions after the Elections.
11.3.22 All petitions which are not made on the floor of the conference shall be submitted to the panel in writing not more than two weeks from the date of the elections. Any petition not received within two weeks from the date of the elections shall not be entertained.
11.3.23 The panel shall within four weeks of receipt of any petition, resolve all issues on such petition(s) thereafter stand dissolved.”

By the combined effect of the Rules 28 and 2 of the said Constitution, all internal disputes in the Association shall be subject to Internal Dispute Resolution process as spelt out in schedule 3 thereof. Thus, any breach or failure to comply with the Internal Dispute resolution amounts to misconduct and attracts the sanction provided in schedule 2.

Then what are the Internal Dispute Resolution Mechanism and the consequential sanctions. Schedule 3 of the appellant’s constitution provide inter alia: –
“3.1 All internal disputes shall be subordinate through the following organs: Unit – Chapter – Branch

– Zone 0 CWC – NEC in that order.
3.4 A member or Branch who is aggrieved with the decisions or actions of the CWC shall report the matter to NEC through the General Secretary.
3.8 A member or Branch who is not satisfied with the outcome of NEC intervention can appeal to National Delegates Conference which decision shall be final.”

Learned appellants’ counsel was vociferous on the strict adherence of step by step dispute resolution procedure as contained in Schedule 3 to the 2nd appellant’s constitution. It is however argued that the step by step process shall be dependent on the nature or type of the dispute. In the present case, the dispute is on the election conducted by the National Delegates Conference after which it constituted the Election Petition Panel.

It therefore follows that being an agent of the National Delegates’ Conference; the Election Petition Panel so constituted enjoys the same status as the National Delegates’ Conference. Hence, it would be an aberration to expect any other organ of the 2nd appellant to review such decision. And being dissatisfied with the decision of the

Electoral panel, the right thing to be done by an aggrieved party is to approach the Court for redress. The learned trial judge was therefore right when he held at page 215 of the record of appeal thus: –
“This Court wishes to state that election matters are by their nature peculiar and once an aggrieved party has approached an Electoral Panel set up for that purpose, especially if the said panel was internally set up, he has a right to approach and appeal such decision at a regular competent Court of jurisdiction if he is dissatisfied with the decision of the Electoral Panel and I so hold.”

I totally endorse the views above and hold that the 1st respondent had in the circumstance exhausted the internal remedies for resolving of disputes arising from elections as provided in the 2nd appellant’s constitution. I therefore resolved issue three against the appellants.

Having resolved all the three issues against the appellants, I therefore find no merit in the appeal and same is hereby dismissed. The judgment of the lower Court delivered on 25th January, 2018 is hereby affirmed.
Parties should bear their respective

costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I had the privilege of reading in advance the judgment delivered by my learned brother M. L. Shuaibu, JCA. My learned brother has painstakingly dealt with the three issues in this appeal. I agree with the reasoning and Conclusion in the judgment. I also agree that the appeal lacks merit and deserved to be dismissed.
I abide with the order as to Costs.

PHILOMENA MBUA EKPE, J.C.A.: My learned brother M. L. Shuaibu, JCA afforded me the opportunity of reading in advance, a draft copy of the judgment just delivered. I totally agree with the resolution made therein.
The appeal is hereby dismissed.

Appearances:

George Ukaegbu with him, Edgerton Onah For Appellant(s)

Ginika Ezeoke Esq. for 1st Respondent.

Oliver Osang Esq. for 2nd Respondent. For Respondent(s)