PROF STEVE TORKUMA UGBA & ANOR V. GABRIEL TORWUA SUSWAM & ORS
(2011)LCN/4861(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of October, 2011
CA/MK/EPT/15/2011 (REASONS)
RATIO
ACADEMIC/HYPOTHETICAL QUESTION : WHEN IS AN APPEAL SAID TO BE ACADEMIC AND HYPOTHETICAL
An appeal is said to be academic and hypothetical when it is theoretical, speculative, conjectural, suppositional, and having no practical or useful significance. Such appeal is hanging and of no legal benefit to the parties in the event that the court determines some. See Merriam – Webster dictionary, Academic, speculative and hypothetical suit was given its meaning by the Supreme Court in Plateau State v. Attorney General of the Federation (2006) ALL FWLR (Pt. 305) 590 at 646 – 647: also reported in (2006) LPELR – SC. 113/2004; per Tobi J.S.C. Pp. 76 – 77, paras. G-C opined: “ A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity. A suit is speculative if it is based on speculation. A suit is speculative if it is not supported by facts or very low on facts but very high in guesses. As courts of law are not established to adjudicate on guesses but on facts, such actions are struck out. A suit is hypothetical if it is imaginary and not based on real facts. A suit is hypothetical if it looks like a “mirage” to deceive the defendant and the court as to the reality of the cause of action. A suit is hypothetical if it is a semblance of the actuality of the cause of action or relief sought”. PER UCHECHUKWU ONYEMENAM, J.C.A.
JURISDICTION OF THE COURT: WHETHER COURTS HAVE JURISDICTION TO ENTERTAIN ACADEMIC APPEALS
Neither this Court nor indeed any other Court has the jurisdiction to make such academic orders. Courts are not permitted to entertain academic appeals because the ensuing order will be a mirage having no decision of a trial court, a trial court or parties to affect. In the instant appeal, the petition which the appellants seek the courts’ order is presently inexistent having been dismissed. The petition being nonexistent, the decision of the court in this appeal will have no decision of a Tribunal, a Tribunal, or parties to affect. Both ground 3 and the petition are of the moment extinguished until the decision of the Supreme Court determines otherwise. Momentarily, the determination and any decision made by the court in this appeal will only have speculative or advisory value to the parties. This is not the function of the Court. The Court has no jurisdiction to do that. The Courts are established to determine live issues and this appeal is devoid of some. The live issues in the instant appeal is spent, any decision on it will vest no right on the successful party. See Odedo v. INEC (2008) 17 NWLP (Pt. 1117) 554. In sum, I hold that this appeal is academic and hence the court declines jurisdiction to determine some. PER UCHECHUKWU ONYEMENAM, J.C.A.
JUSTICES
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
1. PROF STEVE TORKUMA UGBA
2. ACTTON CONGRESS OF NIGERIA (ACN) – Appellant(s)
AND
1. GABRIEL TORWUA SUSWAM
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)
REASONS DELIVERED BY UCHECHUKWU ONYEMENAM: The reasons for the judgment I delivered on 18th October, 2011, are herein given.
The grounds upon which the respective respondents raised their preliminary objection are set out hereunder; 1st respondent:
“(a) The Appellants’ Notice of Appeal dated 08/09/2011 and filed on 09/09/2011, relied upon in this appeal, was filed more than 14 (fourteen) days after 19/08/2011 when the ruling complained of in this appeal was delivered and no leave was sought or secured;
(b) The Appeal has become academic since the substantive petition had been dismissed for reasons other than reasons complained of in this appeal;
(c) The Appellants’ brief contravenes paragraph 14 of the Election Tribunal and Court Practice Direction, 2011 and is therefore incompetent;
(d) Grounds 1 and 6 of the Notice of Appeal are incompetent as they are fresh grounds not taken of the Tribunal and no leave of this Court has been obtained to argue some.
(e) Issues 1 and 4 formulated by the Appellants from grounds 1 and 6 are incompetent as they are based on incompetent Grounds of Appeal.
(f) Grounds 3 and 4 are deemed abandoned as no issue is distilled from these grounds. Issue 3 does not cover grounds 3 and 4 respectively.
(g) Ground 1 of the Notice of Appeal is argumentative and has not alleged an error misdirection of law”.
(h) None of the five issues formulated by the Appellants has been linked to any of the seven grounds in the notice of Appeal.
(i) The appeal is on abuse of Court Process as there are two notices of appeal in the appeal that have not been withdrawn or abandoned.”
2nd Respondent:
(a) “Notice of Appeal was filed out of time.
(b) The determination of this Appeal is a mere academic exercise.
(c) The Appellants’ brief of Argument is incompetent for contravening the provisions of paragraph 14 of the election Tribunal and Court Practice Direction 2011.
(d) Grounds 1 and 6 of the Notice of Appeal are incompetent together with issues 1 and 4.
(e) Grounds 3 and 4 are deemed abandoned”.
3rd Respondent:
(i) “By the decision of this Hon. Court in peoples Democratic Party v. Prof. Steve Torkuma Ugba and ors. Appeal No. CA/MK/EPT/10/2011, delivered on the 16/9/2011, Appeal No. CA/MK/EPT/15/2011 has been overtaken by events and has completely become academic, outside the jurisdiction of this Hon. Court.
(ii) There is no pending petition before the trial Tribunal and by the decision of the trial Tribunal on 19/9/2011 pursuant to the judgment of this Hon, Court, the petition of the appellants has been dismissed and there is no pending appeal against the dismissal order made by the trial Tribunal.
(iii) The success of this appeal confers no legal utility or benefits on the appellants and or the Respondents, as the substratum of the appeal, are extinguished by the judgment of this Hon, court of 16/9/2011 and the ruling below delivered on the 19/9/2011 dismissing the appellants’ Petition”.
From the respective grounds of the respondents’ preliminary objection the sole question that need be determined is whether this Court has the jurisdiction to hear and determine the appeal.
Dr. A.A. Ijohor, SAN, for the 1st respondent submitted that the appeal is academic as it will serve no purpose nor confer any enforceable right or benefit to any Person. He contended that the petition from which this appeal arose has been dismissed and as such it will amount to a mere academic exercise to proceed with the instant appeal until any appeal against the dismissal succeeds. The learned senior counsel firmed his submission on the fact that: in the instant appeal, the 2nd respondent was dissatisfied with the ruling of the Governorship Election Tribunal delivered on 19/7/2011 and appealed to this court vide Appeal No. CA/MK/EPT/10/2011, PDP V. Ugba & ors; judgment was delivered on 16/9/2011 wherein the appeal was allowed in part; consequently, the Tribunal dismissed the petition on 19/9/2011; however, the appellants had by Notice of Appeal filed on 9/9/2011 challenged the ruling of the Tribunal on 19/8/2011; the appellants have also appealed against the decision of this Court delivered on 16/9/2011. Learned Senior Counsel added that the appellants’ appeal to the Supreme Court is still pending and there is no appeal against the dismissal of the Petition on 19/9/2011.
It was learned Senior Counsel’s further submission that there is no live issue between the parties to this appeal in view of the dismissal of the petition and the pendency of the appeal of the Supreme Court against the judgment of this Court. It was his contention that the law is settled that, there must exist between the parties to a suit or an appeal a matter in actual controversy which the Court is called upon to decide as a live issue. This he said is because on the basis of the extant ground-norm upon which our judicial authority is based, Courts in this Country hove no jurisdiction to give advisory opinion. Any judgment which does not decide a live issue is academic or hypothetical. He argued that, any judgment given in this appeal will stand in its best quality only as on advisory opinion. Learned senior counsel submitted that this Court, and indeed any Court in Nigeria, will not engage in rendering such judgment. He referred to: A.G. FEDERATION V. ANPP (2003) 18 NWLP PT. 851 P. 182 Per UWAIFO JSC at 215 PARAS C – H; PLATEAU STATE OF NIGERIA & ANOR V. A.G. FEDERATION & ANOR (2006) 3 NWLR PT. 967 P. 346; EZEREBO V. EHINDERO (2009) 10 NWLR (PT. 1148) 166 at 176 – 177 G – A 177 – 178 H – A and 178 – 179 D – A; UZUDA V. EBIGAH (2009) 15 NWLR (PT. 1163) 1 at 22 C; ADIGHIJE V. NWAOGU (2010) ALL FWLR (PT. 521) at 1534 A – B.
He urged the Court to hold that the is appeal is a mere academic exercise and until the appeal to the Supreme Court is determined in favour of the appellants, there is no live issue before this court for determination. He finally prayed the court to strike out the appeal.
The submissions of the 2nd and 3rd respondents on the issue are substantially the same with that of the 1st respondent except for phraseology. I shall not therefore embark on the summary of their submissions as that will amount to a mere repetition of the submissions above. I will only note that the 3rd respondent also cited the following cases: Yar’Adua v. Abubakar (2009) All FWLR (Pt. 460) 672 at 677: Sambo v. Aliero (2010) All FWLR (Pt. 541) 1569 at 1589 paras C-E: Odedo v. INEC (2008) 17 NWLR (Pt. 1117) 554.
In reply to the 3rd respondent brief of argument, Akeredolu, SAN, submitted that the appellants have filed on appeal to the Supreme Court against the decision of this court on the basis of which the Tribunal dismissed the Petition. He contended that the petition was yet to be heard and determined on the merit before its dismissal by the Tribunal, and that this court has 60 days to determine this appeal. Learned senior counsel submitted that the dismissal of the petition does not extinguish the right of appeal conferred on the appellants by statute and the constitution. He further submitted that the appeal remains alive and potent being that of the time this appeal was filed, it could not have been contemplated that the Tribunal will reach the decision it reached. Finally, he contended that the decision challenged herein has important bearing on the fortunes of the petition when it is heard on its merit and cannot be dismissed as a futile exercise. He urged the court to overrule this arm of the objection.
An appeal is said to be academic and hypothetical when it is theoretical, speculative, conjectural, suppositional, and having no practical or useful significance. Such appeal is hanging and of no legal benefit to the parties in the event that the court determines some. See Merriam – Webster dictionary, Academic, speculative and hypothetical suit was given its meaning by the Supreme Court in Plateau State v. Attorney General of the Federation (2006) ALL FWLR (Pt. 305) 590 at 646 – 647: also reported in (2006) LPELR – SC. 113/2004; per Tobi J.S.C. Pp. 76 – 77, paras. G-C opined:
A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity. A suit is speculative if it is based on speculation. A suit is speculative if it is not supported by facts or very low on facts but very high in guesses. As courts of law are not established to adjudicate on guesses but on facts, such actions are struck out. A suit is hypothetical if it is imaginary and not based on real facts. A suit is hypothetical if it looks like a “mirage” to deceive the defendant and the court as to the reality of the cause of action. A suit is hypothetical if it is a semblance of the actuality of the cause of action or relief sought”.
The contention of the appellants that the appeal remains alive and potent since the decision challenged therein has important bearing on the fortunes of the Petition when it is heard on merit, though correct is speculative, hypothetical and academic. The submission speculates that the dismissed petition may still be heard and determined by the Tribunal and as such the appeal should be determined. To overrule the objection on this submission will me on the determination of this appeal with a futuristic, speculative decision that will lie in wait of whether or not the petition may be heard depending on the outcome of the appellant’ appeal to the Supreme Court. This, in my view makes this appeal speculative. As there is no pending petition, this appeal is illusory, unattainable like a mirage and therefore hypothetical.
Again, by the decision of the Tribunal dismissing the petition on 19/9/2011 which decision has not been appealed against, Appeal No CA/MK/EPT/15/2011 has been overtaken by events. There is no doubt that on 9/9/2011 when this appeal was filed it was not academic as there was a live issue. However events changed the circumstances of the appeal making it academic at the time it was ripe for hearing. The events as stated by the respondents’ learned senior counsel, in sum, are that; there is no pending petition, the appeal against the decision of this Court on 16/9/2011 is still pending at the Supreme Court, any decision in this appeal will have no petition to rest on or parties to affect. More importantly is the nature of the reliefs sought by the appellants in this appeal. It is relevant at this point to reproduce the appellants’ reliefs and consider same with the view of appreciating the legal restraint of granting them in the event of the determination of this appeal.
The reliefs sought by the appellants are thus;
a) “An order allowing this appeal and setting aside the decision of the Tribunal striking out Ground 3 of the petition and unidentified paragraphs of the petition.
b) An order restoring Ground 3 and the unidentified paragraphs struck out by the lower Tribunal.
c) An order invoking the general powers of this Honourable Court to consider Ground 3 of the Petition, the motion for judgment in respect thereof and to enter judgment against the 1st, 2nd and 3rd respondents for non-traverse and admission of Ground 3 of the petition on the pleadings and the documents exhibited to their motion for judgment.
ALTERNATIVELY;
d) An order directing that, the substantive petition be heard by another Tribunal differently constituted”.
The pronouncement of Uwaifo, J.S.C. in A.G. Federation v. ANPP (2004) 114 LRCN 2671 at 2694 is very instructive here: Per Uwaifo:
“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. So that in 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”
Having carefully perused the reliefs sought by the appellants, I am of the opinion that it will be highly hypothetical, speculative and academic for this court to make the orders as sought by them in this appeal. This view rests on the fact that; any decision on the appeal and resultant orders on the reliefs sought, will lead to making speculative orders in the light of the events which have altered the circumstances of the appeal. Also with the nature of the reliefs sought, the appraisal formed in my mind about the determination of this appeal is that it will lead to the grant of orders not known to the law. Upon the determination of this appeal and subsequent grant of the reliefs sought by the appellants, the court would have made orders of this nature:
(a) Setting aside the decision of the Tribunal striking out Ground 3 and unidentified paragraphs of a “nonexistent” petition.
(b) Restoring ground 3 and the unidentified paragraphs struck out by the Tribunal of a “nonexistent” petition.
(c) Invoking the general powers of this Court to consider Ground 3 of a “nonexistent” petition and to make consequential orders.
ALTERNATIVELY
(d) Directing that, the substantive “nonexistent” Petition be heard by another Tribunal.
(underlining for emphasis)
Such orders will only be deceptive as it will have no legal worth. Neither this Court nor indeed any other Court has the jurisdiction to make such academic orders. Courts are not permitted to entertain academic appeals because the ensuing order will be a mirage having no decision of a trial court, a trial court or parties to affect. In the instant appeal, the petition which the appellants seek the courts’ order is presently inexistent having been dismissed. The petition being nonexistent, the decision of the court in this appeal will have no decision of a Tribunal, a Tribunal, or parties to affect. Both ground 3 and the petition are of the moment extinguished until the decision of the Supreme Court determines otherwise. Momentarily, the determination and any decision made by the court in this appeal will only have speculative or advisory value to the parties. This is not the function of the Court. The Court has no jurisdiction to do that. The Courts are established to determine live issues and this appeal is devoid of some. The live issues in the instant appeal is spent, any decision on it will vest no right on the successful party. See Odedo v. INEC (2008) 17 NWLP (Pt. 1117) 554.
In sum, I hold that this appeal is academic and hence the court declines jurisdiction to determine some. The preliminary objection therefore succeeds and is upheld. Appeal No. CA/MK/EPT/15/2011 is consequently struck out.
Appearances
2nd APPELLANT REPRESENTED BY COMRADE ABBA YARO, STATE CHAIRMAN ACN BENUE STATE
S.A. ORKUMA WITH
S.A. NGAVAN
M.I. ATAGHER
J.I. ABAAGU
G.A. UGGAH
J.K. MNDA
J.T. AGOR
C.I. IORNONGO
A.I. WOMBO
T.S. SHIOR
S.O. OKPALE
I.S. OWURU
A.R. TOMBOWUA
M.T. ASSOH FOR APPELLANTSFor Appellant
AND
D.C. DENWIGWE, SAN, WITH
DR. A.A. IJOHOR, SAN, LEADING
CHIEF E.K. ASHIEKAA
I.A. NOMISHAN
MUSA TENDE
S.A. UDAGA
AUDU ANUGA
T.T. IGBA
M.L. IANNA (MISS)
N.L IKYAAGBA (MRS)
F.T. KUSUGH FOR 1st Respondent
CHIEF SOLO AKUMA, SAN, WITH G.E. UKAGBU
P.N. JOOJI (MISS)
C.T. MUE for 2nd Respondent.For Respondent
