AFRICAN PEOPLES ALLIANCE v. A-G., FEDERATION & ANOR
(2020)LCN/14911(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Wednesday, December 02, 2020
CA/E/220/2018
RATIO
SUIT: ATTITUDE OF THE COURT TO ACADEMIC SUIT
The law is settled that a Court will not expend valuable judicial time on a suit which is academic or of no utilitarian value. Before a suit would be considered academic however, the reliefs sought would be such as are incapable of affecting the legal rights of the parties thereto or where a successful party to the dispute cannot benefit from the grant thereof. A suit would also be justifiably considered academic if it is not to resolve an existing dispute but relates to hypothetical, speculative, moot or imaginary dispute. See PLATEAU STATE VS ATTORNEY – GENERAL OF THE FEDERATION (supra), ABUBAKAR VS YAR’ADUA (2008) 4 NWLR (PT 1078) 405 at 497, IJAODOLA VS UNIVERSITY OF ILORIN GOVERNING COUNCIL (2018) 14 NWLR (PT 1638) 32 at 45, KUBOR & ANOR VS. DICKSON & ORS (2012) LPELR-9817(SC) at 72, TURAKI & ANOR VS. ABDULRAHAM (2019) LPELR-46866(CA) and OKE & ANOR VS. MIMIKO & ORS (2013) LPELR-20645(SC). PER OYEWOLE, J.C.A.
ACTION: PURPOSE OF ACADEMIC SUIT
I agree with the learned trial Judge that as they are constituted, the questions for determination and the reliefs sought by the Appellant are hypothetical and of academic relevance only and cannot serve any utilitarian purpose. They are accordingly incompetent. See PLATEAU STATE VS ATTORNEY – GENERAL OF THE FEDERATION (supra), OKE & ANOR VS. MIMIKO & ORS (supra) and ECOBANK VS. HONEYWELL FLOUR MILLS PLC (2018) LPELR-45124(SC).
While public interest litigations are desirable to challenge the status quo and expand the frontiers of dividends derivable by the citizenry from the State, such litigations must be predicated on genuine disputes and not hypothetical circumstances. PER OYEWOLE, J.C.A.
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
AFRICAN PEOPLES ALLIANCE APPELANT(S)
And
- ATTORNEY GENERAL OF THE FEDERATION 2. PRESIDENT, COURT OF APPEAL OF THE FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Enugu Judicial Division, holden at Enugu delivered on the 27th October, 2017, by LIMAN, J.
The Appellant had filed an originating summons before the trial Court wherein he sought a determination of the following questions:
1. Whether the 2nd Defendant, by virtue of the provision of Section 285 of the Constitution of the Federal Republic of Nigeria 1999 (as amended); Section 145 and Paragraph 2 (2) (3) of the First Schedule to the Electoral Act 2010 (as amended), has powers to make the provision of Paragraphs 3 and 4 of the Election Tribunal and Court Practice Direction of 2011 to be applicable to the prosecution of election petitions presented by the Plaintiff at Election Petition Tribunals set up by the 2nd Defendant pursuant to the provisions of Section 285 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
2. If the Honourable Court so holds that the powers conferred upon the 2nd Defendant by Section 285 of the Constitution of the Federal of Nigeria 1999 (as amended)
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to set up Election Petition Tribunals does not extend to that of making the provision of Paragraph 3 and 4 of the Election Tribunal and Court Practice Direction of 2011 to be applicable to the prosecution of election petitions at Election Petition Tribunals set up by the 2nd Defendant pursuant to the provisions of Section 285 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) the Plaintiff shall seek the following reliefs from the Honourable Court.
And upon the determination of the above questions, it sought the following reliefs:
1. An order of declaration of the Honourable Court that the provisions of Paragraphs 3 and 4 of the Election Tribunals and Court Practice Direction 2011 framed by the 2nd Defendant, does not apply to election petitions presented by the Plaintiff at Election Petition Tribunals set up by the 2nd Defendant pursuant to the provisions of Section 285 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
2. An order of declaration of the Honourable Court that it is the security for costs as ordered by a given Election Petition Tribunal set up by the 2nd Defendant in
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line with the provision of Section 285 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) that is to be deposited with the concerned Election Petition Tribunal by the Plaintiff while initiating and prosecuting an election petition at an Election Petition Tribunal in Nigeria.
3. An order of declaration of the Honourable Court that the 2nd Defendant does not have the powers to order the Plaintiff to pay additional deposit for prosecuting election petition filed at an Election Petition Tribunal set up in line with the provisions of Section 285 of the Constitution of the Federal Republic of Nigeria 1999(as amended).
4. An order of declaration of the Honourable Court that the 2nd Defendant only has powers to frame Paragraphs 3 and 4 of the Election Tribunal and Court Practice Directions 2011, stipulating security for costs and further deposits to be deposited with the Court, with regard to the conduct of election petition initiated at the Court of Appeal for the determination of presidential election petition.
5. An order of declaration of the Honourable Court that an Election Petition Tribunal set up by the 2nd Defendant
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pursuant to the provisions of Sections 285 of the Constitution of the Federal Republic of Nigeria of 1999 (as amended) can only stipulate the amount of money to be deposited as security for cost by the Plaintiff when filing an election petition, after the election petition must have been filed by the Plaintiff, and the Tribunal made an order as to the amount of money to be deposited as security for cost.
6. An order of the Honourable Court, striking down and/or declaring null and void the provisions of Paragraphs 3 and 4 of the Election Tribunals and Court Practice Direction 2011 framed by the 2nd Defendant for being inconsistent with the provisions of Section 145 and Paragraph 2 (2) (3) of the First Schedule to the Electoral Act 2010 (as amended); to the extent of Paragraphs 3 and 4 of the Election Tribunal and Court Practice Direction’s inconsistency with the provisions of Section 145 and Paragraph 2 (2) (3) of the First Schedule to the Electoral Act 2010 (as amended).
7. An order of the Honourable Court restraining the Defendants, their agents, privies and/or institutions acting on their behalf or at their behest in any form whatsoever,
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inclusive of Election Petition Tribunals set up by the 2nd Defendant to entertain Governorship, National and State Houses of Assembly election petition by virtue of Section 285 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), from relying on the provisions of Paragraphs 3 and 4 of the Election Tribunals and Court Practice Direction 2011 framed by the 2nd Defendant while conducting and/or entertaining such election petitions at an Election Petition Tribunal constituted to entertain Governorship, National and State Houses of Assembly election petition.
8. Any other order or further order (s) the Honourable Court may deem fit to make in the circumstances of this case.
On being served, the Defendants now Respondents filed counter affidavits and the 1st Respondent added a preliminary objection challenging the competence of the action and objecting to the jurisdiction of the trial Court to entertain it on the following grounds:
1. The Plaintiff’s suit is statute barred.
2. The suit is at best an academic suit.
3. The Plaintiff’s suit as constituted is incompetent and this Honourable Court lacks the
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jurisdiction to entertain same.
The preliminary objection was heard with the substantive action and in a considered judgment the learned trial Judge found merit in the preliminary objection and found that the suit was an academic exercise, upon which it was dismissed.
Dissatisfied, the Appellant filed a Notice of Appeal on the 18th January, 2018 containing three grounds, one of which was abandoned in the brief of arguments.
At the hearing of the appeal, Okwukalazu Esq. adopted the Appellant’s brief filed on the 4th April, 2018 as the arguments of the Appellant in this appeal. On being satisfied that the 1st Respondent was duly notified of the hearing date, the 1st Respondent’s brief filed on 22nd October, 2018 but deemed properly filed and served on the 3rd November, 2020 was deemed adopted as the arguments of the 1st Respondent in contesting the appeal while Mr. Nwaigwe adopted the 2nd Respondent’s brief filed on the 1st August, 2018 as the arguments of the 2nd Respondent in contesting the appeal.
The Appellant formulated a lone issue formulated thus:
Whether the learned trial Judge was not in error, when he held
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that the suit filed by the Appellant is academic.
The 1st Respondent equally formulated a lone issue in this manner:
Whether the learned trial Judge was right when he held that the Appellant‘s suit was academic, speculative and hypothetical.
The 2nd Respondent adopted the lone issue as formulated by the Appellant and I have no difficulty in also doing so as well as it succinctly captures the point in controversy in this appeal.
Arguing the lone issue, Okwukalazu Esq. of counsel submitted that from the facts deposed in the affidavit in support of the action, it was apparent that the Appellant disclosed a denial of right to institute an electoral litigation which indicated that its action was not academic. Learned counsel impliedly conceded that no electoral dispute was instituted but submitted that doing so would defeat the purpose of the present litigation.
Learned counsel further argued that access to Court must be encouraged by the Courts and referred to UMEANADU VS ATTORNEY-GENERAL ANAMBRA STATE 5 MJSC 15 and submitted that the provisions in contention will restrict access to justice to citizens of modest resources.
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The 1st Respondent in the brief settled by Mrs C. I. Lebo countered by submitting the learned trial Judge was right in holding that the Appellant’s action was academic. Learned counsel submitted that a suit is academic if it has no utilitarian value to the plaintiff and referred to PLATEAU STATE & ANOR VS A.G. FEDERATION & ANOR (2006) LPELR-2921(SC), ARDO VS INEC & ORS (2017) LPELR-41919(SC), CPC VS INEC & ORS (2011) LPELR-8257(SC) and ODEDO VS PDP & ORS (2015) LPELR-24738(SC).
Mrs. Lebo submitted further that the Appellant’s action did not raise any dispute between the parties in respect of which it was seeking resolution as was rightly held by the trial Court and referred to AR SECURITY SOLUTION LTD VS EFCC (2018) LPELR-43828.
The learned counsel finally argued that while the Appellant alluded to a desire to present an electoral petition he did not give further details indicating that it was merely speculative and not actual. She submitted that a Court is not allowed to speculate or guess on a matter requiring evidence and referred to RAPHAEL EJEZIE & ORS VS CHRISTOPHER ANUWU & ORS (2008) LPELR-1063(SC),
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IKENTA BEST (NIG.) LTD VS ATTORNEY GENERAL RIVERS STATE (2008) LPELR-1476(SC) and ADEGBITE VS STATE (2017) LPELR-42585(SC).
On the part of the 2nd Respondent, Mr. Nwaigwe of counsel similarly submitted that the decision of the trial Court that the Appellant’s action was academic was well grounded. Learned counsel then outlined the relevant provisions of the Electoral Act as well as the Election Tribunal and Court Practice Directions 2011 and submitted that the constitutional powers of the 2nd Respondent to make rules regulating practice and procedure in this regard are sacrosanct and cannot be challenged by the Appellant. He referred to NWORA VS NWABUEZE (2011) 15 NWLR (PT 1271) 496-497.
Bringing the point nearer home, he submitted that filing an election petition was a condition precedent for the Appellant to challenge the provisions of the said practice directions. He therefore urged the Court to hold that there was no live issue in the Appellant’s suit. He referred to IKENYA VS PDP (2012) 12 NWLR (PT 1315) 511 and TAIWO VS ADEGBORO (2011) 11 NWLR (PT 1259) 584.
In the penultimate paragraph of page 121 of the record of appeal, the learned
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trial Judge came to the finding which is subject of this appeal in the following words:
In the instant case, it is my view the plaintiff’s claim has failed to meet the “requirement of party-adverseness” but instead has raised mere academic speculative and hypothetical issues that do not amount to a real controversy worthy for the consideration of the Court.
The law is settled that a Court will not expend valuable judicial time on a suit which is academic or of no utilitarian value. Before a suit would be considered academic however, the reliefs sought would be such as are incapable of affecting the legal rights of the parties thereto or where a successful party to the dispute cannot benefit from the grant thereof. A suit would also be justifiably considered academic if it is not to resolve an existing dispute but relates to hypothetical, speculative, moot or imaginary dispute. See PLATEAU STATE VS ATTORNEY – GENERAL OF THE FEDERATION (supra), ABUBAKAR VS YAR’ADUA (2008) 4 NWLR (PT 1078) 405 at 497, IJAODOLA VS UNIVERSITY OF ILORIN GOVERNING COUNCIL (2018) 14 NWLR (PT 1638) 32 at 45, KUBOR & ANOR VS. DICKSON & ORS
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(2012) LPELR-9817(SC) at 72, TURAKI & ANOR VS. ABDULRAHAM (2019) LPELR-46866(CA) and OKE & ANOR VS. MIMIKO & ORS (2013) LPELR-20645(SC).
The kernel of the Appellant’s action is a challenge to Paragraphs 3 and 4 of the Election Tribunal and Court Practice Directions 2011, stipulating security for costs and further deposits to be deposited with regard to the conduct of election petitions.
A perusal of the facts deposed to by the Appellant in support of his action however did not show that the Appellant had any election petition which it was unable to prosecute due to the inability to deposit the stipulated security for cost.
That the Appellant participated in the 2015 general elections did not automatically translate to the existence of an electoral dispute as envisaged by the Electoral Act, 2010 (as amended). The Appellant failed to adduce any evidence of the existence of any electoral grievance it was prevented from litigating which would have translated its case from the virtual realm to the terrestrial.
I agree with the learned trial Judge that as they are constituted, the questions for determination and the reliefs
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sought by the Appellant are hypothetical and of academic relevance only and cannot serve any utilitarian purpose. They are accordingly incompetent. See PLATEAU STATE VS ATTORNEY – GENERAL OF THE FEDERATION (supra), OKE & ANOR VS. MIMIKO & ORS (supra) and ECOBANK VS. HONEYWELL FLOUR MILLS PLC (2018) LPELR-45124(SC).
While public interest litigations are desirable to challenge the status quo and expand the frontiers of dividends derivable by the citizenry from the State, such litigations must be predicated on genuine disputes and not hypothetical circumstances.
I therefore resolve the lone issue for determination against the Appellant and in favour of the Respondent.
I find no merit in this appeal and it is accordingly dismissed.
Parties shall bear their respective costs.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I agree
ABUBAKAR SADIQ UMAR, J.C.A.: I have had the privilege of reading in draft the lead judgment prepared by my learned brother Joseph Olubunmi Kayode Oyewole JCA. I am in complete agreement with his Lordship’s conclusions in the appeal
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which I adopt as mine.
I too dismiss the appeal and endorse the order of costs made in the lead Judgment.
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Appearances:
C.C. Okwukalazu Esq. For Appellant(s)
Mr. G. Nwaigwe holding brief for Mr. I. C. Ndubuisi for 2nd Respondent For Respondent(s)
