HON. BASHIRU BOLARINWA v. COMRADE ADAMS ALIYU OSHIOMHOLE & ORS
(2019)LCN/12723(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of February, 2019
CA/IL/4A/2019
RATIO
ACTION: WHETHER AN ACADEMIC SUIT NEEDS TO BE DETERMINED BY THE COURT
“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 the practical situation of human nature and humanity. Per Niki tobi, JSC, @ 666. Invariably, an academic issue or question is one which does not actually need any answer or determination by a Court of law because it is not necessary at all. An academic issue or question is one which does not relate to the live issues in the litigation because it is spent, as in the instant appeal. Therefore, it will not enure any right or benefit upon the successful party. See ADEPOJU VS. OLONA YINKA CHAIRMAN UNPP OYO STATE (2012) 1 SCM 38 @ 51; BADEJO VS. FED. MIN. OF EDUCATION (1996) 8 NWLR (Pt. 464).” PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
Between
1. HON. BASHIRU BOLARINWA
(For himself and on behalf of members of the so called or purported Caretaker Committee of Kwara State Chapter of All Progressives Congress (APC) Appellant(s)
AND
1. COMRADE ADAMS ALIYU OSHIOMHOLE
(National Chairman, All Progressives Congress (APC)
2. MALLAM MAIMALA BUNI
(National Secretary, All Progressives Congress (APC)
3. ALL PROGRESSIVES CONGRESS (APC)
4. ALL PROGRESSIVES NATIONAL WORKING COMMITTEE
5. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
6. HON. ISHOLA BALOGUN FULANI
(Chairman, All Progressives Congress (APC) Kwara State)
7. PRINCE CHRISTOPHER TUNJI AYENI
(Secretary, All Progressives Congress( APC) Kwara State)
(for themselves and on behalf of members of Executive Committee of All Progressives Congress (APC) Kwara State) Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment):
The present appeal is a consequence of the judgment of the Kwara State High Court, holden at Ilorin Judicial Division, which was delivered on December 19, 2018 in suit No. KWS/292/2018. By the said judgment, the Court below granted all the 13 reliefs sought by the 6th and 7th Respondents in the Originating Summons thereof against the Appellant and the 1st & 5th Respondents, respectively.
BACKGROUND FACTS
It is obvious from the record of appeal, that on July 31, 2018 the 6th and 7th Respondents instituted the said suit vide an Originating Summons, there by seeking various declaratory and injunctive reliefs against the Appellant and 1st – 5th Respondents, respectively. By the Amended Originating Summons thereof, the 6th and 7th Respondents sought the determination five pertinent questions, Viz:
1. Whether the Claimants and other members of the Kwara State Executive Committee of the All Progressives Congress (APC) in Kwara State duly elected and sworn-in to their respective offices as State Officers of the All Progressives Congress (APC) in Kwara State on the 19th of May, 2018 in accordance with the Constitution of the All Progressives Congress (APC) are not entitled to remain in office for a period of four (4) years for which they were elected.
2. Whether having regard to the provisions of the 1999 Constitution of the 3rd Defendant and rule of law, the 3rd Defendant has power to dissolve the Kwara State Executive Committee of the 3rd Defendant led by the 1st Claimant when they four (4) year tenure of office had not elapsed in fragrant violation of Article 17 (1) of the Constitution of the 3rd Defendant and the rights of the Claimants to any form of hearing.
3. Whether there is lacuna as envisaged by the provisions of Article 13.4, paragraph xvi of the 3rd Defendant’s Constitution to have warranted the purported appointment of the Caretaker Committee of the 3rd Defendant purportedly led by the 6th Defendant for Kwara State by the 1st and 2nd Defendants.
4. Whether having regard to the provisions of the Constitution of the 3rd Defendant especially the provisions of Article 13.4, paragraph xvi, there existed any lacuna or the exigencies to warrant the dissolution of the Kwara State Executive Committee of the 3rd Defendant led by the 1st Claimant and the appointment of a Caretaker Committee under the 6th Defendant.
5. Whether the purported appointment of the Caretaker Committee of the Kwara State Executive Committee of the 3rd Defendant led by the 6th Defendant is not unconstitutional, illegal, void, ineffective and ineffectual having regard to the fact that there existed no lacuna as envisaged by the provisions of Article 13.4, paragraph xvi of the 3rd Defendant’s Constitution which would have warranted such appointment and for violating the rule of natural justice and the rights of the Claimants to a fair hearing under the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
The 6th and 7th Respondents thereby prayed for a total of 13 declaratory and injunctive reliefs against the Appellant and the 1st & 5th Respondents.
Parties filed and exchanged the respective processes thereof, including Notice of Preliminary Objection, counter affidavits and written addresses in regards to the Originating Summons in question. At the conclusion of the trial, the Court below delivered the vexed judgment on the said December 19, 2018 to the conclusive effect, thus:
There is nothing to show that Article 13.4 (v) and (xiv) confer the power/right to conduct primary elections of any party aspirant of the 3rd defendant solely on the National Working Committee of the 3rd defendant. In the absence of any credible evidence for the dissolution of the Kwara State Executive Officers of the 3rd defendant, the claimants are entitled to the reliefs before the Court. All questions formulated for determination are answered in the affirmative and all the reliefs sought are granted.
Not unnaturally, the Appellant was dissatisfied with the said judgment, thus the instant appeal. The notice of appeal, dated and filed on January 2, 2019, is predicated upon a total of 17 grounds.
On February 4, this Court granted leave to the Appellant to rely on the main record of appeal in the sister appeal (CA/IL/4/2019) for the hearing of the appeal. Equally, on February 11, when the appeal came up for hearing, the learned counsel adopted their respective briefs of argument, thereby resulting in reserving Judgment.
The Appellant’s brief spans a total of 35 pages. At pages 4 – 5 of the said brief, a total of seven issues have so far been formulated, Viz:
1. Whether or not the trial Court was not wrong in holding that the non-sealing of the Originating Summons with which the 6th and 7th respondents commenced the suit did not render the suit incompetent on the grounds the omission is an irregularity committed by the Registry of the trial Court which cannot be visited on the claimants and which sin was waived by the appellant. (Grounds 1 and 2).
2. Is the decision of the trial Court not a nullity same having been characterized with bias and acts of ever reaching the Court of Appeal and the appellant’s pending interlocutory appeal (Ground 16).
3. Whether or not the trial Court did not misconstrue the case of tile appellant which is that the action of the claimants is premature and incompetent by holding that the 6th and 7th respondents were excluded from membership of the 3rd respondent during the pendency of this case, Article 21 (D) (V) of the Constitution of the 3rd respondent is in conflict with Section 6 (6) (a) and (b) of the Constitution of the Federal Republic of Nigeria 1999 as amended and the alleged failure of the 1st-4th respondents to abide by Article 12 of the Constitution of the 3rd respondent rendered result to internal dispute resolution mechanism by the 6th and 7th respondent before approaching the Court is otiose. (Grounds 3 and 4).
4. Whether or not the trial Court was right in holding that the suit as constituted and with particular regard to reliefs 6, 9, 10 and 13 is competent and can be entertained in the absence of the 34 elected candidates of the 3rd respondent without considering the issue of incompetence of the suit as constituted as a pre-election matter. (Grounds 7 and 11).
5. Whether or not the trial Court was not wrong in holding that it has the jurisdiction to entertain the case including reliefs 9, 10 and 13 because under Article 13(v) and (xiv) of the Constitution of the 3rd respondent, it is the State Executive Committee and other organs of the 3rd respondent that has the right to “conduct” primaries for the nomination of Party’s candidates and not the National Working Committee of the 3rd respondent even without considering the decisions of the Supreme Court placed before the Court on the lack of power of State Executive Committee of the a political party to conduct primary elections for nomination of the Party’s candidates for elections to be conducted by INEC. (Grounds 5, 6 and 8)
6. Whether or not the trial Court was right in holding that the 6th and 7th respondents had emerged through credible process, duly elected, authenticated and accepted by 1st – 4th respondents and the appellant as the Kwara State Executive Committee of the 3rd respondent and that from the claims/reliefs and affidavit of the 6th and 7th respondents, there are no serious issues of fact in the suit to have rendered the case not being amenable to originating summons procedure. (Grounds 9, 10, 12 and 17).
7. Whether or not the trial Court was not wrong it holding that lacuna means “vacancy” and that under Article 13.4 (xvi) of the constitution of the 3rd respondent, the 4th respondent is a quasi-judicial body which can only dissolve vacancy but which in this case exercised its powers to dissolve where there is no lacuna (vacancy), no credible evidence of anti-party activities by the 1st and 2nd respondents and or any evidence for the dissolution. (Grounds 13, 14 and 15).
Contrariwise, the 6th and 7th Respondents’ brief, filed on February 6, spans a total of 34 pages. Most specifically, paragraphs 3.00 – 4.06 at pages 2 – 3 of the brief, deal with notice of objection and the argument canvassed thereupon. A total of seven issues have equally been formulated at page 4 of the brief, Viz:
1. Whether the trial Court was not right in treating the non-sealing of the Originating Summons as a mere irregularity and in further holding that the 6th and 7th Respondents ought not to be penalized for the default of the lower Court’s registry to do what was expected of it thereby refusing to strike out the originating summons? Ground 1 and 2.
2. Whether there was any proven act of bias against the trial learned Judge to render his Lordship?s decision a nullity. Ground 16.
3. Whether the 6th and 7th Respondents do not have the locus standi to institute and maintain this action and whether the action was premature so as to deprive the Honourable Court of its jurisdiction and whether the trial Court set up a new case for the 6th and 7th Respondents? Grounds 3 and 4.
4. Whether the trial Court was not right in holding that the suit was properly constituted and it was unnecessary to join 34 other Candidates of the 3rd Respondents for the case to be competent? Grounds 7 and 11.
5. Whether the trial Court was not correct in holding that there was no serious issue of disputed facts in the case to render originating summons procedure proper and further that the 6th and 7th Respondents were duly elected and accepted by the 1st – 4th Respondents. Ground 9, 10, 12 and 17.
6. Whether the trial Court was not right in holding that there was no lacuna in the Kwara State Executive Committee of the 3rd Respondent that will justify the dissolution of the Kwara State Executive Committee of the 3rd Respondent led by the 6th Respondents and in granting the reliefs sought by the 6th and 7th Respondents in this case. Grounds 13, 14 and 15.
7. Whether the trial Court was not right in holding that it has jurisdiction to entertain the case as presented and that the State Executive Committee of the 3rd Respondent had powers and roles in the conduct of Primaries to elect its candidates for general elections. Ground 5, 6 and 8.
I have accorded an ample regard upon the nature and circumstances surrounding the instant appeal, the submissions of the learned counsel contained in their respective briefs of argument vis–vis the record of appeal, as a whole. On the face of the record and from the far-reaching submissions of the learned counsel contained in their respective briefs, it is rather obvious, that the instant appeal is a direct fall-out of the judgment of the Court below delivered by T. S. Umar, J., in suit No. KWS/292/2018 on December 19, 2018. Interestingly, this is the same judgment against which the previous two sister appeals (i. CA/IL/148/2018; and ii. CA/IL/4/2019) were filed. It is common knowledge, that the said judgment of the Court below (KWS/292/2018) was set aside on the ground that the suit upon which it was predicated was incompetent. The second (sister) appeal (CA/IL/4/2019) was just a moment ago struck out on the simple ground that it would tantamount to a sheer fruitless academic exercise for me to determine the same issues relating to the same Lis (subject matter), the same parties and issues all over again.
Instructively, the judgment of this Court in the earlier sister appeal (CA/IL/148/2018) was to the conclusive effect:
Hence, against the backdrop of the far-reaching foregoing postulations, and having effectively resolved all the four issues raised herein in favour of the Appellants, the appeal resultantly grossly succeeds, and it is hereby allowed by me.
Consequently, the ruling of the High Court of Kwara State delivered on October 24, 2018 in suit No. KWS/292/2018, by T. S. Umar, J; is hereby set aside. The said suit No. KWS/292/2018, having adjudged to be incompetent is accordingly hereby struck out.
In the case of ODEDO VS. INEC (2008) 17 NWLR (Pt. 1117) 554, the Apex Court citing with approval its earlier decision in PLATEAU STATE VS. AG FED (2006) 3 NWLR (Pt. 967) 346 aptly held:
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 the practical situation of human nature and humanity. Per Niki tobi, JSC, @ 666.
Invariably, an academic issue or question is one which does not actually need any answer or determination by a Court of law because it is not necessary at all. An academic issue or question is one which does not relate to the live issues in the litigation because it is spent, as in the instant appeal. Therefore, it will not enure any right or benefit upon the successful party. See ADEPOJU VS. OLONA YINKA CHAIRMAN UNPP OYO STATE (2012) 1 SCM 38 @ 51; BADEJO VS. FED. MIN. OF EDUCATION (1996) 8 NWLR (Pt. 464).
Hence, having arrived at the most inevitable conclusion as in the sister appeal (CA/IL/4/2018), that it would tantamount to a sheer fruitless academic exercise for me to delve in to the determination of the appeal on the merits, I hold that the instant appeal ought to be, and it is hereby struck out.
Parties shall bear their respective costs of litigation.
IBRAHIM SHATA BDLIYA, J.C.A.: I agree
HAMMA AKAWU BARKA, J.C.A.: I was privileged to have read in draft the judgment just delivered by my learned brother, Ibrahim Mohammed Musa Saulawa JCA. The decision took into consideration all the submissions of the learned counsel in the appeal. I therefore agree with the resolution of the issues and have nothing useful to add. I abide by the orders made including that as to costs.
Appearances:
Ayinla Jawondo Salman, Esq. of Jawondo & Co.For Appellant(s)
Chief Akin Olujinmi, CON, SAN, with him, Ahmed Akanbi, Esq., A. Bello, Esq., Raheem Ismail Esq., Abayomi Balogun. Esq. & Ayodele Adesanya, Esq. for the 1st-4th respondents.
Ayodeji Akerele, Esq. for the 5th Respondent.
Yusuf Ali, SAN of Yusuf Ali & Co. for the 6th & 7th Respondents
For Respondent(s)
