ADEDIJI & ANOR v. REGD TRUSTEES OF NIESV & ORS
(2022)LCN/15999(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, February 18, 2022
CA/K/531/2014
Before Our Lordships:
Fatima Omoro Akinbami Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Peter Oyinkenimiemi Affen Justice of the Court of Appeal
Between
1. BODE ADEDIJI 2. ROWLAND ABONTA APPELANT(S)
And
1. THE REGISTERED TRUSTEES OF THE NIGERIAN INSTITUTION OF ESTATE SURVEYORS AND VALUERS 2. ESTATE SURVEYORS AND VALUERS REGISTRATION BOARD OF NIGERIA 3. EMMANUEL OSITA OKOLI 4. MRS CECILIA BOLA OKOLI 5. DARAMOLA OLUTOYE RESPONDENT(S)
RATIO
WHETHER OR NOT THE COURT HAS POWERS TO SET ASIDE OR VARY ITS EARLIER ORDER
The general proposition of law is that a Court has no power to set aside or vary its earlier order except in circumstances where there has been a fundamental defect in the proceedings leading up to the making of the order sought to be set aside. In this regard, a clear distinction is drawn between proceedings or orders which are nullities by reason of a fundamental defect which goes to the jurisdiction and/or competence of the Court on the one hand, and those in respect of which there has been nothing worse than a mere irregularity on the other hand.
In the case of the former, a person affected by such an order is entitled ex debito justitiae to have the order set aside; and this could be done by the Court which made the order without any need for an appeal to a higher Court. See ANATOGU v IWEKA II [1995] 8 NWLR (PT. 415) 547 at 586 and AGWUNEDU v ONWUMERE [1994] 1 NWLR (PT. 321) 375. The emphasis here is on the Court as a single entity, and not on the individual Judges of the Court. It seems therefore that in a situation of fundamental defect in the proceedings resulting in a nullity, a Court or Judge may set aside its order or that of another Court or Judge of concurrent or coordinate jurisdiction [see OBOROH v. OGHUVWU & ANOR (1999) LPELR-6065(CA) 1 at 12-13], for instance, where a writ or application was not served on the adverse party [see SKENCONSULT (NIG.) LIMITED & ANOR v GODWIN SEKONDY UKEY (1981) 1 SC 6 at 15-18]; or where the action is tainted with fraud [see LEONARD OKOYE & ORS v NIGERIAN CONSTRUCTION & FURNITURE CO. LTD [1991] 6 NWLR (PT. 119) 501]; or the Court is bereft of jurisdiction to entertain the action or for any other reason, the order is a complete nullity [see OKOLI OJIAKO & ORS v OGUEZE & ORS (1962) 1 ALL NLR 58, (1962) 1 SCNLR 112, LAWAL v DAWODU (1972) 8-9 SC 83, EKERETE v EKE (1925) 6 NLR 118, SILIYUN & ORS v MASHI & ORS. (1975) 1 NMLR 55 at 58, CRAIG v KAUSSEN (1943) K.B. 256 and BELLO v INEC [2010] 8 NWLR (PT. 1196) 342 at 419]. PER AFFEN, J.C.A.
THE EFFECT OF THE FAILURE BY AN APPELLANT TO REACT TO A RESPONDENT’S PRELIMINARY OBJECTION
The effect in law of failure by an Appellant to react to a Respondent’s preliminary objection is that he (the Appellant) does not have an answer to the objection. See UMANAH v NDIC [2016] 4 NWLR (PT. 1533) 458 (SC), (2016) LPELR-42556(SC), IRO v ECHEWENDU & SONS [1996] 8 NWLR (PT. 468) 629 (CA) and AMAYE v C.O.P. (2020) LPELR-52240(CA) 1 at 4–5. However, the mere fact that the Appellant failed to address issues raised in a preliminary objection does not mean that the objection would ipso facto be upheld or sustained. See EKWUNIFE v NGENE [2000] 2 NWLR (PT. 646) 650, (1999) LPELR-6972(CA) 1 at 7-8. Once the Court is satisfied that the Appellant was given ample opportunity to react to the objection but failed or neglected to so do, the Court should go ahead and consider the preliminary objection and render a ruling. See UMANAH v NDIC supra. I will therefore consider the 3rd–5th Respondent’s preliminary objection on its merits notwithstanding that the Appellants did not react to it one way or another. PER AFFEN, J.C.A.
THE POSITION OF LAW ON AN ACADEMIC SUIT
It is hornbook law that the jurisdiction imbued in Courts of law is to be exercised in grappling with, and resolving, live issues in controversy between litigating parties: ODEDO v INEC [2008] 17 NWLR (PT. 1117) 554 at 600, (2008) LPELR-2204(SC) 1 at 36-37. The Courts do not exist for the purpose of engaging in academic disquisitions or entertaining hypothetical matters or questions: the ivory towers or law journals and periodicals are the proper fora for such an exercise. See ROLAND v FEDERAL REPUBLIC OF NIGERIA (2018) LPELR-43686(CA) 1 at 48 –per Ogakwu, JCA. In PLATEAU STATE v ATTORNEY-GENERAL OF THE FEDERATION (2006) 1 SC (PT. 1) 4 at 60, [2006] 3 NWLR (PT. 968) 346 at 419, (2006) LPELR-2921(SC) 1 at 76-77, his Lordship Niki Tobi, JSC explained, with characteristic clarity, that: “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”. See also ODEDO v INEC supra, OGBONNA v PRESIDENT F.R.N. [1997] 5 NWLR (PT. 504) 281, NWOBOSI v A.C.B. [1995] 6 NWLR (PT. 404) 658 at 681, EZEANYA v OKEKE [1995] 4 NWLR (PT. 388) 142 at 165, GLOBAL TRANSPORT OCEANICO S.A. v FREE ENTERPRISES (NIG) (2001) LPELR-1324(SC) 1 at 19–20 and AR SECURITY S. LTD v EFCC supra. PER AFFEN, J.C.A.
WHETHER OR NOT THE COURTS MUST PRONOUNCE ON ALL ISSUES PROPERLY PLACED BEFORE THEM FOR DETERMINATION
The preliminary objection succeeds, and that obviates the necessity of considering the sole issue identified hereinbefore. I will here remind and caution myself at once that not being a Court of final resort but merely a penultimate Court, this Court should determine substantive issues arising for determination even after sustaining a preliminary objection. Binding case law donates the proposition that all Courts lower than the Supreme Court in the judicial hierarchy should pronounce on all issues properly placed before them for determination and not restrict themselves to one or more issues which in their opinion may dispose of the matter. See OJOGBUE v NNUBIA (1972) 8 SC 227, XTOUDOS SERVICES NIG. LTD v TAISEI W. A. LTD [2006] 15 NWLR (PT. 1003) 533, KATTO v CENTRAL BANK OF NIGERIA [1991] 9 NWLR (PT. 214) 126 at 149, OJIKUTU v OJIKUTU (1971) LPELR-2375(SC), OKONJI v NJOKANMA [1991] 7 NWLR (PT. 202) 131 at 150, 151-152, ADEGBUYI v ALL PROGRESSIVES CONGRESS (2014) LPELR-24214 (SC), OYEDIRAN v AMOO (1970) 1 ALL NLR 313 at 317, ATANDA v AJANI [1989] NWLR (PT. 111) 511 at 539 and TITILOYE v OLUPO [1991] 7 NWLR (PT. 205) 519 at 529. The obvious rationale, apart from the demands of fair hearing, is to obviate the risk of possibility that the only issue(s) decided could be faulted on further appeal. See BRAWAL (NIG) LTD v F. I. ONWADIKE CO. LTD & ANOR (2000) LPELR-802(SC) 1 at 13-15 –per Uwaifo, JSC. PER AFFEN, J.C.A.
WHETHER OR NOT THE COURT CAN RESOLVE ACADEMIC QUESTIONS THAT ARE OF NO PRACTICAL VALUE
The Courts do not make a practice of resolving academic or hypothetical questions that are of no practical utilitarian value to the party seeking it even if judgment is entered in his favour [see ATTORNEY-GENERAL OF PLATEAU STATE v ATTORNEY GENERAL OF THE FEDERATION supra, IMEGWU v OKOLOCHA [2013] 9 NWLR (PT. 1359) 349 and ABE v UNILORIN [2013] 16 NWLR (PT. 1379) 183], and this Court ought not to dissipate its energies and scarce resources on an already spent issue which is merely academic and built on mere hypothesis. Embarking on such a course is an adventure that is ill-suited for a Court of law. See SHETTIMA v GONI (2012) ALL FWLR (PT. 609) 1007 and OLAFISOYE v F.R.N. [2004] 4 NWLR (PT. 864) 580 at 654-655. PER AFFEN, J.C.A.
PETER OYINKENIMIEMI AFFEN, J.C.A. (Delivering the Leading Judgment): This present appeal and the sister appeal in CA/K/95/2015: The Registered Trustees of the Nigerian Institution of Estate Surveyors and Valuers v. Mr Bode Adediji & 5 Ors are offshoots of Suit No. FHC/KD/CS/54/2011: Emmanuel Okoli & 2 Ors v. The Registered Trustees of the Nigerian Institution of Estate Surveyors and Valuers & 3 Ors. Whereas this appeal is against an interlocutory ruling delivered on 30/1/13, Appeal No. CA/K/95/2015 is against the final judgment delivered on 10/12/14. The interlocutory ruling lies at pp. 36–41 of the record of appeal transmitted on 1/12/14, whilst the notice of appeal is at pp. 42–46 thereof. The 3rd–5th Respondents filed on 13/3/20 a notice of preliminary objection challenging the competence of the appeal as presently constituted.
At the hearing on 22/11/21, the 3rd–5th Respondents’ preliminary objection was moved by Anyalewechi, Esq. of counsel, who equally adopted the 3rd–4th Respondents’ Brief (filed on 10/3/20 but deemed properly filed and served on 19/1/20) which incorporates arguments in support of the preliminary objection at pp. 6–9 thereof; and it was mutually agreed that since this appeal and Appeal No. CA/K/95/15 relate to the same judgment/case, the Appellant’s Amended Brief of Argument filed on 20/3/20 and “all the briefs filed in CA/K/95/15 are deemed argued in this appeal”.
From the three (3) grounds raised in the notice of appeal, the following three (3) issues are distilled in the Appellant’s Amended Brief of Argument’:
“(a) Whether being a proposed witness in a proceeding makes it mandatory to be joined as a party when no relief is claimed against the proposed witness in his personal capacity” – Ground One.
(b) Whether the provision of Order 9, Rule 14 of the Federal High Rules 2009 is applicable to an order of joinder made by a Court of coordinate jurisdiction – Ground Two.
(c) Whether the lower Court can review the decision of her predecessor as a Court of coordinate jurisdiction when there was no evidence of fraud or misrepresentation of facts in granting the earlier order made by her predecessor – Ground Three.“
On their part, the 3rd–5th Respondents distilled a sole issue for determination, namely:
“Whether the lower Court had the jurisdiction to set aside the order it made on the 11th June, 2017, the said order of 11th June, 2012 being a nullity”.
I have given a careful and insightful consideration to the issues distilled by the parties. Judging by the grounds of appeal set out in the notice of appeal dated 13/10/14, the rather narrow issue this appeal seeks to interrogate is the propriety of the ruling of Anyadike, J. setting aside the earlier order of Ojukwu, J. The general proposition of law is that a Court has no power to set aside or vary its earlier order except in circumstances where there has been a fundamental defect in the proceedings leading up to the making of the order sought to be set aside. In this regard, a clear distinction is drawn between proceedings or orders which are nullities by reason of a fundamental defect which goes to the jurisdiction and/or competence of the Court on the one hand, and those in respect of which there has been nothing worse than a mere irregularity on the other hand.
In the case of the former, a person affected by such an order is entitled ex debito justitiae to have the order set aside; and this could be done by the Court which made the order without any need for an appeal to a higher Court. See ANATOGU v IWEKA II [1995] 8 NWLR (PT. 415) 547 at 586 and AGWUNEDU v ONWUMERE [1994] 1 NWLR (PT. 321) 375. The emphasis here is on the Court as a single entity, and not on the individual Judges of the Court. It seems therefore that in a situation of fundamental defect in the proceedings resulting in a nullity, a Court or Judge may set aside its order or that of another Court or Judge of concurrent or coordinate jurisdiction [see OBOROH v. OGHUVWU & ANOR (1999) LPELR-6065(CA) 1 at 12-13], for instance, where a writ or application was not served on the adverse party [see SKENCONSULT (NIG.) LIMITED & ANOR v GODWIN SEKONDY UKEY (1981) 1 SC 6 at 15-18]; or where the action is tainted with fraud [see LEONARD OKOYE & ORS v NIGERIAN CONSTRUCTION & FURNITURE CO. LTD [1991] 6 NWLR (PT. 119) 501]; or the Court is bereft of jurisdiction to entertain the action or for any other reason, the order is a complete nullity [see OKOLI OJIAKO & ORS v OGUEZE & ORS (1962) 1 ALL NLR 58, (1962) 1 SCNLR 112, LAWAL v DAWODU (1972) 8-9 SC 83, EKERETE v EKE (1925) 6 NLR 118, SILIYUN & ORS v MASHI & ORS. (1975) 1 NMLR 55 at 58, CRAIG v KAUSSEN (1943) K.B. 256 and BELLO v INEC [2010] 8 NWLR (PT. 1196) 342 at 419].
There is therefore no gainsaying that the lower Court is invested with requisite jurisdiction to set aside its earlier decision or that of another Judge of concurrent or coordinate jurisdiction in an appropriate case. But the relevant enquiry is whether this is such an appropriate case; and the simple, straightforward issue to be resolved in this interlocutory appeal is: Whether the lower Court was right in setting aside the order of 11/6/12 in the subsequent ruling of 30/1/13. It is on the basis of this sole issue, which is all-encompassing and subsumes the issues distilled by the Appellant and the 3rd-5th Respondents, that we shall dispose of this appeal.
But in order not to displace secondary things, let us do first things first by grappling with the 3rd–5th Respondents’ preliminary objection, which prays for: “AN ORDER striking out the grounds and notice of appeal dated 14th October, 2014 (sic: 13th October, 2014) for being academic and incompetent”. The grounds relied upon are:
“1. The Appellants’ appeal in this matter is against the decision of the lower Court delivered in Suit No. FHC/KD/CS/54/2011 on the 30th day of January, 2013.
2. The Appellants’ grounds and the issues emanating therefrom are academic.
3. The Court does not dabble into academic issues.
4. That being so, the Appellants’ appeal as presently constituted before this Court is incompetent.”
In the affidavit in support of preliminary objection deposed by one Jumoke Oyedele (a litigation secretary at The Light House, solicitors to the 3rd–5th Respondents) that whereas the Appellants are challenging the interlocutory decision of the lower Court delivered on 30/1/13, final judgment in the matter was entered on 10/12/14 which, to all intents and purposes, was against the 1st and 2nd Respondents only; that the Appellants herein were neither mentioned nor was any relief granted against them in the final judgment; that the Appellants have not suffered any injury or loss that can be remedied by this appeal, which has become a mere academic exercise that will not achieve any meaningful purpose; and that since the Court does not dabble into or resolve academic issues, it will serve the higher interest of justice to strike out Issues (a)–(c) formulated in the Appellants’ Amended Brief of Argument as well as the notice and grounds of appeal from which they are distilled for being incompetent.
Calling in aid, the decision of the Supreme Court in AR SECURITY S. LTD v EFCC [2018] ALL FWLR (PT. 962) 1656, the 3rd–5th Respondents contend that a Court of law is not established or set up for the purpose of hearing or entertaining hypothetical or academic issues, but matters which are alive and in contest between the parties; that the Appellants were sued as 3rd and 4th defendants and the 1st Respondent (who was sued as 1st defendant) applied for their names to be substituted with that of other persons the 3rd–5th Respondents (as plaintiffs) had no desire to sue on the ground that no reliefs were claimed against them personally; that the lower Court, by its ruling of 11/6/12 substituted the appellants with two others, which decision the lower Court subsequently (and rightly) set aside, thereby restoring the Appellants as parties to this suit. The 3rd–5th Respondents maintained that after series of unsuccessful schemes to stall the hearing, the 1st Appellant testified amongst other witnesses before the lower Court which eventually entered final judgment on 10/12/14 wherein no mention is made of either the 1st or 2nd Appellant nor was relief of any kind granted against them; that there is no loss, injury or damage suffered by the Appellants which this appeal could remedy even in the unlikely event that it is upheld; that for all intents and purposes, the final judgment of the lower Court relates to and concerns only the 1st and 2nd Respondents; and that it would have been a different matter if the suit at the lower Court was still pending, in which case the utilitarian value of the appeal could be said to avoid incurring unnecessary costs in defending the suit, which is not the case. The 3rd-5th Respondents queried rhetorically – “Of what use or value would it be to the Appellants if this appeal is upheld, and this Court holds that the lower Court had no jurisdiction to set aside the order made on the 11th June 2012?” – and submitted that “the value of this appeal by the Appellants lies only in ego and sadistic satisfaction”, insisting that whether they were parties or not, is no longer of any relevance in reality because the final judgment neither imposed any liability on, nor denied any benefit or right due to, the Appellants whose reason(s) for applying for the their names to be substituted has become spent and/or overtaken by events. The Court was urged to strike out this appeal for being academic.
As stated hereinbefore, it was mutually agreed that at the hearing that “all the briefs filed in Appeal No. CA/K/95/2015 are deemed argued in this appeal”. Unfortunately, none of the said briefs in Appeal No. CA/K/95/2015 reacted one way or another to the point of objection taken by the 3rd–5th Respondents in the instant appeal. It is thus safe to conclude that there is no response by the Appellants to the preliminary objection. The effect in law of failure by an Appellant to react to a Respondent’s preliminary objection is that he (the Appellant) does not have an answer to the objection. See UMANAH v NDIC [2016] 4 NWLR (PT. 1533) 458 (SC), (2016) LPELR-42556(SC), IRO v ECHEWENDU & SONS [1996] 8 NWLR (PT. 468) 629 (CA) and AMAYE v C.O.P. (2020) LPELR-52240(CA) 1 at 4–5. However, the mere fact that the Appellant failed to address issues raised in a preliminary objection does not mean that the objection would ipso facto be upheld or sustained. See EKWUNIFE v NGENE [2000] 2 NWLR (PT. 646) 650, (1999) LPELR-6972(CA) 1 at 7-8. Once the Court is satisfied that the Appellant was given ample opportunity to react to the objection but failed or neglected to so do, the Court should go ahead and consider the preliminary objection and render a ruling. See UMANAH v NDIC supra. I will therefore consider the 3rd–5th Respondent’s preliminary objection on its merits notwithstanding that the Appellants did not react to it one way or another.
Now, the factual matrix undergirding this appeal falls within a rather narrow compass. The Appellants, the 3rd, 4th and 5th Respondent are members of the Nigerian Institution of Estate Surveyors and Valuers [1st Respondent]. The Appellants were the National President and National Secretary of the 1st Respondent at all material times. The 3rd and 5th Respondents were expelled following a resolution passed at the 1st Respondent’s Annual General Meeting held on 12/3/11, whereupon the 3rd–5th Respondents (as plaintiffs) initiated the suit that generated the present appeal at the Federal High Court Holden at Kaduna, against the 1st and 2nd Respondents (as 1st and 2nd defendants) and the Appellants herein as 3rd and 4th defendants), claiming the following declaratory and injunctive reliefs:
“a) A declaration that the purported expulsion of the 1st and 3rd Plaintiffs from the Nigerian Institution of Estate Surveyors and Valuers is null and void due process as provided for in the Constitution of the Institution having not been followed by the Annual General Meeting of the Institution in arriving at the decision.
b) A declaration that the Annual General Meeting of the Nigerian Institution of Estate Surveyors and Valuers acted in excess of its Constitutional power when it purported to expel the 1st and 3rd Plaintiffs from the Institution.
c) A declaration that only the Council of the Nigerian Institution of Estate Surveyors and Valuers is empowered by Constitution of the Institution to discipline and to expel members of the Institution.
d) A declaration that motion moved by one Samuel Ukpong for the expulsion of the 1st and 3rd Plaintiffs from the Institution not having been brought within the contemplation of the Constitution of the Nigerian Institution of Estate Surveyors and Valuers is null and void and could not have been the basis for the expulsion from the Institution of the 1st and 3rd Plaintiffs.
e) A declaration that the failure of the Annual General Meeting of the Nigerian Institution of Estate Surveyors and Valuers to afford the 1st and 3rd Plaintiffs the opportunity to be heard before their expulsion from the Institution goes contrary to the spirit of the Constitution of the Institution and the right of the 1st and 3rd Plaintiffs to fair hearing guaranteed under the 1999 Constitution.
f) A declaration that the act of the Defendants of ordering the closure of the premises of business of the 1st and 2nd Plaintiffs wherein the 2nd Plaintiffs was never expelled or suspended by the Institution for any act whatsoever is gross violation of the 2nd Plaintiff’s right to practice as an Estate Surveyor and is hence null and void.
g) And Order setting aside the purported expulsion of the 1st and 3rd Plaintiffs due process having not been followed in arriving at the decision to expel them from the Nigerian Institution of Estate Surveyors.
h) An Order restraining the 2nd Defendant from withdrawing the Licenses of the Plaintiffs as Estate Surveyors and Valuers and/or closing down offices or doing anything whatsoever and howsoever in pursuance of the purported expulsion of the 1st and 3rd Plaintiffs from the Nigerian Institution of Estate Surveyors and Valuers or in pursuance of the request or notice by the Nigerian Institution of Estate Surveyors and Valuers for the withdrawals of the 1st and 3rd Plaintiffs’ Licenses and the closure of the Plaintiffs.”
Judging by the foregoing reliefs, it would seem apparent that no relief was claimed against the Appellants who were sued as 3rd and 4th defendants. The matter was initially pending before Ijeoma L. Ojukwu, J. who granted an order on 11/6/12 substituting the 1st and 2nd Appellants herein, Bode Adediji and Rowland Abonta (sued as 3rd and 4th Defendants) with Emeka Eleh and Kunle Awolaja. The latter were said to have succeeded the former as National President and National Secretary of the 1st Respondent at that time. The substitution was not opposed by Itodo Kenneth, Esq. of counsel for the 3rd-5th Respondents (plaintiffs). Sequel to the transfer of Ojukwu, J. from the Kaduna Division of the Federal High Court and the eventual reassignment of the case to Evelyn N. Anyadike, J., the 3rd-5th Respondents (as plaintiffs) filed a motion of notice dated 1/11/12 praying the lower Court to set aside the order of substitution granted by Ojukwu, J. on 11/6/12 “for incompetence and lack of jurisdiction”. In a considered ruling delivered on 30/1/13, the lower Court (per Anyadike, J.) took the view (at p. 40 of the records) that:
“In the instance (sic) case, I have looked at the statement of claim and have found as a fact that Mr Bode Adediji and Mr Rowland Abonta were not only sued in their official capacities as such, but are necessary parties whose presence before this Court is necessary for effectual and complete adjudication of the issues involved in this proceedings. That counsel stood there and watched the opponent to dictate to him who to sue and who not to sue is a mistake I cannot blame on the litigating plaintiffs. The position is that the Rules allow me at any stage of the proceeding to join the name of any party who ought to have been joined or to strike out the name of any party who was improperly joined. See Order 9 Rule 14 of the Federal High Court Rules 2009.”
The lower Court (per Anyadike, J.) proceeded to set aside the earlier order of substitution granted by Ojukwu, J. on 11/6/12, and thereby reinstated the Appellants as 3rd and 4th defendants in the suit. The Appellants could not see their way clear that the lower Court could validly set aside the earlier order of 11/6/12 in the manner it did, and lodged the present appeal upon seeking and obtaining the leave of this Court on 2/10/14. In the meantime, plenary trial proceeded before Anyadike, J. and culminated in the final judgment entered on 10/12/14 on the basis of which the 3rd–5th Respondents contend in support of their preliminary objection that the instant appeal has been rendered academic and consequently liable to be struck out for being incompetent.
It is hornbook law that the jurisdiction imbued in Courts of law is to be exercised in grappling with, and resolving, live issues in controversy between litigating parties: ODEDO v INEC [2008] 17 NWLR (PT. 1117) 554 at 600, (2008) LPELR-2204(SC) 1 at 36-37. The Courts do not exist for the purpose of engaging in academic disquisitions or entertaining hypothetical matters or questions: the ivory towers or law journals and periodicals are the proper fora for such an exercise. See ROLAND v FEDERAL REPUBLIC OF NIGERIA (2018) LPELR-43686(CA) 1 at 48 –per Ogakwu, JCA. In PLATEAU STATE v ATTORNEY-GENERAL OF THE FEDERATION (2006) 1 SC (PT. 1) 4 at 60, [2006] 3 NWLR (PT. 968) 346 at 419, (2006) LPELR-2921(SC) 1 at 76-77, his Lordship Niki Tobi, JSC explained, with characteristic clarity, that: “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”. See also ODEDO v INEC supra, OGBONNA v PRESIDENT F.R.N. [1997] 5 NWLR (PT. 504) 281, NWOBOSI v A.C.B. [1995] 6 NWLR (PT. 404) 658 at 681, EZEANYA v OKEKE [1995] 4 NWLR (PT. 388) 142 at 165, GLOBAL TRANSPORT OCEANICO S.A. v FREE ENTERPRISES (NIG) (2001) LPELR-1324(SC) 1 at 19–20 and AR SECURITY S. LTD v EFCC supra.
The reliefs claimed by the 3rd–5th Respondents (as plaintiffs) in the Court below are set out hereinbefore. As can be gleaned from the notice of appeal dated 13/10/14, the Appellants’ grouse in this appeal is two-fold: the first is that the lower Court (per Anyadike, J.) erred in designating them as necessary parties to the suit in the ruling of 30/1/13 which reinstated them as parties after the same lower Court (per Ojukwu, J.) had on 11/6/12 ordered their substitution with the incumbent national officers of the 1st Respondent; and the second is that the lower Court lacked the requisite vires to set aside its earlier order of substitution, insisting that “only an appellate Court can set aside the ruling of 11th June, 2012 and not the same Court reviewing itself notwithstanding that it is constituted differently”. In the final judgment delivered on 10/12/14 (which is the subject matter of the sister appeal in CA/K/95/15), the lower Court held thus:
“I hereby enter judgment in favour of the Plaintiffs and order as follows:
1) I declare that the Annual General Meeting of the 1st Defendant acted in excess of its constitutional powers in expelling the 1st and 3rd Plaintiffs from the Institution.
2) I declare that only the council of the 1st Defendant is empowered to discipline and/or expel members of the institution.
3) I declare that the purported expulsion of the 1st and 3rd Plaintiffs from the institution of the 1st Defendant is null and void due process having not been followed.
4) The purported expulsion of the 1st and 3rd Plaintiffs by the Annual General Meeting of the 1st Defendant on 12th day of March, 2011 is hereby set aside.
5) The 2nd Defendant is hereby restrained from withdrawing the licences of the Plaintiffs and/or closing down their offices or doing anything whatsoever and howsoever in furtherance of the purported expulsion of the 1st and 3rd Plaintiffs or the request or notice served on it by the 1st Defendant.
No order as to costs.”
Notwithstanding their reinstatement as 3rd and 4th defendants in the suit, it cannot escape notice that the lower Court did not grant any reliefs or make any orders against any of the two Appellants in its final judgment; and that is what reinforces the 3rd–5th Respondent’s preliminary objection. The relevant enquiry therefore is as to what practical purpose will be served, or what utilitarian value will the eventual success of this appeal donate to the Appellants. Since the Appellants’ contention from the get go is that no relief was claimed against them and the lower Court erred in designating them as necessary parties in the ruling appealed against, and the lower Court did not grant any reliefs or make any orders against them in the final judgment entered on 10/12/14, the utilitarian purpose this appeal would serve remains to be seen. The relief sought by the Appellants in the present appeal (as contained in paragraph 4 of the notice of appeal at p. 44 of the records) is: “AN ORDER of this Honourable Court setting aside the ruling of Hon. Justice Evelyn Anyadike in Suit No. FHC/KD/CS/54/2011 dated 30th day of January, 2013 and restore the ruling of Hon. Justice Ijeoma Ojukwu dated 11th June, 2012 and the matter be assigned to new Court for trial”. Since trial has already been concluded and final judgment entered by Anyadike, J. on 10/12/14, the consequential order this Court would make even if this appeal succeeds is an order of retrial with the parties as constituted by the order of substitution granted by Ojukwu, J. on 11/6/12, which order the Appellants have prayed this Court to restore. That is to say, the Appellants will not participate in the retrial because they have ceased to be parties to the suit pursuant to the order of substitution granted by Ojukwu, J. Quite clearly therefore, this appeal has been rendered academic and spent, and the 3rd–5th Respondents are right in contending that it would be a “… purely academic [exercise for] this Court to delve into whether the lower Court had jurisdiction to set aside the decision of a Court of co-ordinate jurisdiction” in the peculiar facts circumstances that have come to light in these proceedings. As his Lordship, Ejembi Eko, JSC intoned in LAWSON v OKORONKWO & ORS (2018) LPELR-46356(SC) 1 at 14: “An appeal becomes academic when, even if allowed, it has no utilitarian purpose or value. As a settled principle, engaging in an appeal that has become decrepit, an empty shell, with no practical utilitarian value to the Appellant, even if the judgment were given in his favour, is merely an academic and/or a hypothetical exercise: PLATEAU STATE v A.G., FEDERATION (2006) ALL F.W.L.R. (Pt. 305) 590 at 646 – 647”.
The preliminary objection succeeds, and that obviates the necessity of considering the sole issue identified hereinbefore. I will here remind and caution myself at once that not being a Court of final resort but merely a penultimate Court, this Court should determine substantive issues arising for determination even after sustaining a preliminary objection. Binding case law donates the proposition that all Courts lower than the Supreme Court in the judicial hierarchy should pronounce on all issues properly placed before them for determination and not restrict themselves to one or more issues which in their opinion may dispose of the matter. See OJOGBUE v NNUBIA (1972) 8 SC 227, XTOUDOS SERVICES NIG. LTD v TAISEI W. A. LTD [2006] 15 NWLR (PT. 1003) 533, KATTO v CENTRAL BANK OF NIGERIA [1991] 9 NWLR (PT. 214) 126 at 149, OJIKUTU v OJIKUTU (1971) LPELR-2375(SC), OKONJI v NJOKANMA [1991] 7 NWLR (PT. 202) 131 at 150, 151-152, ADEGBUYI v ALL PROGRESSIVES CONGRESS (2014) LPELR-24214 (SC), OYEDIRAN v AMOO (1970) 1 ALL NLR 313 at 317, ATANDA v AJANI [1989] NWLR (PT. 111) 511 at 539 and TITILOYE v OLUPO [1991] 7 NWLR (PT. 205) 519 at 529. The obvious rationale, apart from the demands of fair hearing, is to obviate the risk of possibility that the only issue(s) decided could be faulted on further appeal. See BRAWAL (NIG) LTD v F. I. ONWADIKE CO. LTD & ANOR (2000) LPELR-802(SC) 1 at 13-15 –per Uwaifo, JSC. Failure so to do may occasion a miscarriage of justice, especially if the issue/issues not pronounced upon turn out to crucial. It occurs to me however that considering the sole issue distilled for determination in the instant appeal will amount to embarking on the very same academic adventure or hypothetical exercise, which constitutes the basis for sustaining the preliminary objection in the first place. I will therefore, with great respect, permit myself to refrain from considering and making pronouncement on ‘whether the lower Court was right in setting aside its order of 11/6/12 in the subsequent ruling of 30/1/13’.
The Courts do not make a practice of resolving academic or hypothetical questions that are of no practical utilitarian value to the party seeking it even if judgment is entered in his favour [see ATTORNEY-GENERAL OF PLATEAU STATE v ATTORNEY GENERAL OF THE FEDERATION supra, IMEGWU v OKOLOCHA [2013] 9 NWLR (PT. 1359) 349 and ABE v UNILORIN [2013] 16 NWLR (PT. 1379) 183], and this Court ought not to dissipate its energies and scarce resources on an already spent issue which is merely academic and built on mere hypothesis. Embarking on such a course is an adventure that is ill-suited for a Court of law. See SHETTIMA v GONI (2012) ALL FWLR (PT. 609) 1007 and OLAFISOYE v F.R.N. [2004] 4 NWLR (PT. 864) 580 at 654-655. The proper thing to do in the circumstance is strike out this appeal without further assurance. I so order. There shall be no order as to costs.
FATIMA OMORO AKINBAMI, J.C.A.: I have read in draft, the lead judgment of my learned brother, Peter Oyinkenimiemi Affen, JCA, where the facts and issues in contention have been set out.
I am in agreement with the reasoning and conclusion and adopt the judgment as mine. I have nothing extra to add.
ABUBAKAR MAHMUD TALBA, J.C.A.: I had the privilege of reading in draft, the lead judgment of my learned brother PETER. O. AFFEN, JCA. My lord has dealt with the issues in contention extensively and to that extent I have nothing useful to add. Accordingly, I adopt the judgment as mine and I abide by the consequential order(s).
Appearances:
Bola Oyebanji, Esq. For Appellant(s)
Usman Abdulahi, Esq. (holding the brief of Omotayo Adetona, Esq.) – for 1st Respondent
Usman Abdulahi, Esq. (holding the brief of Joseph Ochei, Esq.) – for 2nd Respondent
I. K. Anyalewechi, Esq. for 3rd, 4th and 5th Respondents For Respondent(s)