AIKPOKPO-MARTINS & ORS v. HONOURABLE CHIEF JUDGE OF DELTA STATE OF NIGERIA
(2022)LCN/16120(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Friday, May 20, 2022
CA/AS/237/2020
Before Our Lordships:
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Sybil Onyeji Nwaka Gbagi Justice of the Court of Appeal
Between
1. JOHN AIKPOKPO-MARTINS ESQ. 2. OGHENEJABOR IKIMI ESQ. 3. ELVIS OKUGBO ESQ. 4. JOHN D. BELLO ESQ. 5. F.C.OKALA ESQ. APPELANT(S)
And
THE HONOURABLE CHIEF JUDGE OF DELTA STATE OF NIGERIA RESPONDENT(S)
RATIO
WHETHER OR NOT COURTS CAN ENGAGE IN ACADEMIC ISSUES OR EXERCISE
That being the position, it necessarily means that Appellants’ complaints in their originating summons, for which they promptly took out summons on 17-1-2018 and this appeal which stem from the lower Court’s decision on it, have long become moot and academic and so does not deserve the precious time of this Court deciding it. See Frank Okon Daniel v. Independent National Electoral Commission & Ors (2015) LPELR-24566(SC) where it was said by Rhodes-Vivour, JSC, at p.34 that:
“Courts should not engage in academic issues/exercise. They should spend judicial time resolving live issues. A Court is never the proper forum for academic exercise. Academic issues lead nowhere; they only satisfy counsel that he has resolved a trivial issue or no issue at all, but with great expense to the litigant and exhausting the energy of judicial officers.”
Even the fact that the opinion of this Court on Appellants’ complaint may assist any or both parties in the future in arranging their affairs is no answer, for Courts do not give advisory opinions. See on that, the case of Attorney General of the Federation v. ANPP (2003) LPELR-630 (SC) P.35-36, (2003) 18 NWLR (PT 851) 182 where it was said by Uwaifo, J.S.C., at p. 215 thus:
“…….in a 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. And I think the fact that the decision may help one of the parties to redirect its affairs in an entirely different or probably anticipated situation is irrelevant.” PER UGO, J.C.A.
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is from the decision of the High Court of Delta State striking out Appellants’ originating summons against Respondent on grounds of lack of locus standi in them and their failure to disclose their cause of action in it.
Appellants in the said originating summons sought interpretation of Order 45 Rule 4(2) of the High Court of Delta State (Civil Procedure) Rules 2009 stating that:
“There shall be an annual vacation of the Court to commence on such date in August and of such duration, not exceeding six weeks, as the Chief Judge may by notification in the gazette appoint.”
Appellants, all lawyers carrying on practice in Delta State, sought answers to the following questions in their originating summons:
1. Whether by the extant provisions of Section 36 of the Delta State High Court Law, Cap. H3, Laws of Delta State of Nigeria, 2006 and Order 45 Rule 4(2) of the High Court of Delta State (Civil Procedure) Rules 2009 the duration of the annual vacation period of the High Court of Justice of Delta State Nigeria can exceed 6 weeks.
2. Whether taking into consideration the combined provisions of Section 15(4) of the Interpretation Act Cap 123 Laws of the Federation of Nigeria 2010 and Section 6(d) of of the Interpretation Law (Cap 17) Laws of Delta State of Nigeria 2006, the duration of the annual six weeks’ vacation period of the High Court of Justice of Delta State Nigeria can be interpreted to exclude weekends falling within the six weeks.
3. Whether taking into consideration the joint provisions of Section 36 of the Delta State High Court Law (Cap H3) Laws of Delta State of Nigeria 2006, Order 45 Rule 4 (2) of the High Court of Delta State (Civil Procedure) Rules 2009, Section 15(4) of the Interpretation Act (Cap 123) Laws of the Federation of Nigeria 2010 and Section 6(d) of the Interpretation Law (Cap 17) Laws of Delta State of Nigeria 2006 the defendant can suo motu alter and interpret the six weeks of annual vacation period by directing that the duration of the annual vacation period for the High Court of Justice of Delta State for the year 2018 shall commence from Wednesday the 1st day of August 2018 to Thursday 27th day of September 2018.
4. Whether 1st defendant’s declaration of the period commencing from Wednesday the 1st day of August 2018 to Thursday 27th day of September 2018 (58 days) as the duration annual vacation period is not in excess of the six weeks maximum period by law and therefore not in conformity with the provisions of Section 36 of the Delta State High Court Law (Cap. H3) Laws of Delta State of Nigeria 2006 and Order 45 Rule 4 (2) of the High Court of Delta State (Civil Procedure) Rules 2009.
They sought the following reliefs from the Court should those questions be answered in their favour:
1. A declaration that by the extant provisions of Section 36 of the Delta State High Court Law, (Cap. H3) Laws of Delta State of Nigeria, 2006 and Order 45 Rule 4 (2) of the High Court of Delta State (Civil Procedure) Rules, 2009, the duration of the annual Vacation period of the High Court of Justice, Delta State of Nigeria should not exceed 6 (six) weeks, that is 42 days.
2. A declaration that, taking into consideration the combined provisions of Section 15(4) of the Interpretation Act (Cap. I23) Laws of the Federation of Nigeria, 2010 and Section 6(d) of the Interpretation Law (Cap 17) Laws of Delta State of Nigeria, 2006; the calculation of the period not exceeding 6 (six) weeks for the annual vacation period of the High Court of Justice, Delta State of Nigeria by the 1st Defendant is inclusive of weekends and public holidays falling within the said period.
3. A declaration that, taking into consideration the joint provisions of Section 36 of the Delta State High Court Law, (Cap. H3) Laws of Delta State of Nigeria, 2006, and Order 45 Rule 4 (2) of the High Court of Delta State (Civil Procedure) Rules, 2009, Section 15(4) of the Interpretation Act (Cap. I23) Laws of the Federation of Nigeria, 2010 and Section 6 (d) of the Interpretation Law (Cap I7) Laws of Delta State of Nigeria, 2006; the 1st Defendant lacks the vires to suo motu extend the six weeks maximum duration of the annual vacation period by directing that the annual vacation period for the High Court of Justice, Delta State of Nigeria for the year 2018 shall commence from Wednesday the 1st of day of August, 2018 to Thursday 27th day of September, 2018.
4. A declaration that 1st Defendant’s declaration of the period commencing from Wednesday the 1st of day of August, 2018 to Thursday 27th day of September, 2018 (58 days) as the duration of the annual vacation period is in excess of the 6 (six) weeks provided by law and therefore not in conformity with the provisions of Section 36 of the Delta State High Court Law, (Cap. H3) Laws of Delta State of Nigeria, 2006 and Order 45 Rule 4 (2) of the High Court of Delta State (Civil Procedure) Rules, 2009.
5. A declaration that the directive issued by the 1st Defendant vide letter dated Friday the 1st of December, 2017 and copies of which were circulated by the 2nd Defendant is unlawful and a violation of the provisions of Order 45 Rule 4 (2) of the High Court of Delta State (Civil Procedure) Rules, 2009.
6. An order setting aside the directive issued by the 1st Defendant vide letter dated Friday the 1st of December, 2017, copies of which were circulated by the 2nd Defendant.
7. An order of perpetual injunction restraining the Defendants acting by themselves and/or through their privies, officials, subordinates or any Judicial Officer from violating and/or further violating the mandatory provisions of Order 45 Rule 4 (2) of the High Court of Delta State (Civil Procedure) Rules, 2009 regarding the 6 weeks maximum duration for the annual vacation of the High Court of Delta State.
Fourth Appellant in the affidavit supporting the summons swore as follows:
1. That I am 4th Claimant and was at various times the Welfare and Publicity Secretary of the Nigerian Bar Association, Warri branch.
2. That I have the authority of the other Claimants to make this affidavit on their behalf.
3. That the 1st Claimant is the immediate past Chairman of the Nigerian Bar Association, Warri Branch; a member of the National Executive Committee of the Nigerian Bar Association (NBA) and Chairman of Association of Professional Bodies of Nigeria (APBN), Delta State Chapter.
a. That the 2nd Claimant is a senior legal practitioner based in Effurun, Rights Activist and the Executive Director, Centre for the Vulnerable and the Underprivileged.
b. That the 3rd Claimant is the current Chairman of Sapele branch of the Nigerian Bar Association and a member of Nigerian Bar Association National Executive Committee.
c. That the 5th Claimant is a former Assistant Secretary and Publicity Secretary of the Nigerian Bar Association, Warri branch and a very active legal practitioner.
6. That I further state that:
a. The 1st Defendant is the Honorable Chief Judge of Delta State of Nigeria and the head of the Delta State Judiciary.
b. The 2nd Defendant is the Chief Registrar of the Delta State Judiciary and has the statutory function of implementing all the decisions of the 1st Defendant, amongst others.
c. That I know as a fact that the 1st Defendant is empowered by the Delta State High Court Law and the Delta State (Civil Procedure) Rules, 2009 to indicate the period when the annual vacation for the High Courts of Delta State would commence.
d. That I know as a fact that the Delta State (Civil Procedure) Rules, 2009 provides that the vacation period for the High Courts in Delta State shall be 6 (six) weeks (42 days), and not more,
e. That I know as a fact that the 1st Defendant has declared that the vacation period for the year 2018 shall commence from Wednesday the 1st of day of August, 2018 to Thursday 27th day of September, 2018, which sums up at 58 days.
f. That I also know as a fact that the same trend established by the 1st Defendant will continue in 2019 and beyond if not stopped.
g. That I also know as a fact that the 1st Defendant further issued a directive dated Friday the 1st of December, 2017 confirming paragraph ‘e’ above. Attached and marked as Exhibit “TP1” is the actual copy of the directive seen and sent to the Nigerian Bar Association Branches in Delta State.
h. That I know as a fact that an additional 16 days (i.e. 2 weeks and 2 days) have been added by the 1st Defendant to the six weeks maximum period provided by law.
i. That I know as a fact that the Nigerian Bar Association, Warri branch and some other branches of the Nigerian Bar Association in Delta State have in several fora like the New Legal Year Opening Ceremonies for 2016 and 2017 raised the issue of extended vacation of the High Courts and that in actual fact, out of the 365 days in a year (and after removing weekends, public holidays and other days due to burials or special events approved by the 1st Defendant) the High Courts in Delta State sit less than 150 days cumulatively in a year.
j. That the Claimants are active legal practitioners who practice their trade in the High Courts of Delta State for themselves and/or represent their clients.
k. That the extended vacation period of the Delta State High Court has affected their practice considerably as the hearing of cases in Courts are put in abeyance for 58 days (as happened in the preceding year, 2017) and same is replicating itself in the year 2018; this has caused hardship on Claimants and their clients who at times lose interest in pursuing their matters in Court. This ultimately affects the income of the Claimants and lawyers in Delta State.
l. That the Claimants, being very busy practitioners, usually schedule their yearly diaries regarding litigations in accordance with the 6 weeks maximum provided by the Delta State High Court (Civil Procedure) Rules, 2009.
m. That I know as a fact the provisions of the High Court (Civil Procedure) Rules 2009 and any official directive of the 1st Defendant affects the business of the Claimants, as in this case.
n. That l know as a fact that 1st Defendant does not have the power to unilaterally or by fiat alter and/or increase/extend the duration of the 6 weeks (42 days) vacation period under any circumstance except as provided by law.
O. That the 2nd Defendant has been directed by the 1st Defendant to carry out the instruction stated in Exhibit “TP1”.
7. That it is in the interest of justice, the legal profession and the general public that this application be granted.
8. That this Honorable Court should grant the reliefs sought in the originating summons.
Respondent, upon receipt of the originating summons filed no counter-affidavit to the summons but simply raised a preliminary objection to the locus standi of Appellants to challenge his said action and whether they had a cause of action.
The learned trial Judge, after entertaining arguments on the objection, agreed with the said preliminary objection and struck out the originating summons on the grounds earlier mentioned of Appellants’ lack of standing to challenge Respondent’s said declaration and their failure to disclose a cause of action in them.
Appellants are aggrieved and have brought the instant appeal against it. They formulated the following three issues for determination by this Court:
1. Whether the trial Court was right when it held that appellants lacked locus standi to file the action.
2. Whether the suit did not disclose any cause of action.
3. Whether the failure of the trial Court to determine the substantive issues submitted for resolution was not an abdication of judicial duty.
In support of their issue 1, they submitted that they disclosed sufficiently their locus standi in their affidavit; that Respondent did not even challenge that affidavit so he is deemed to have accepted the facts contained. They argued that the learned trial Judge even contradicted himself when he first held (at page 44 of the record) that “It is a known fact that the Court is the market place of legal practitioners to carry out their duties, and then ‘somersaulted’ when he held (at the same page) that “… the claimant has not shown in their affidavit how the directives issue by the 1st Respondent affects them specifically. This is so because the affidavit in support has not disclosed any injury that is peculiar to the claimants over and above the public.” Through their counsel, Mr. Olukunle Oghene-ovu Edun, they submitted that not only is this holding of the trial Court against the facts deposed in their affidavit, it is against the modern liberal trend of the Courts on locus standi once it has to do with public and constitutional law and borders on public interest matters. In support of that trend Mr. Edun on their behalf referred us to the decisions of the Supreme Court in Centre for Oil Pollution Watch v. NNPC (2019) 5 NWLR (PT 1666) 518 as well as this Court’s decisions in Fawehinmi v. Akilu (1987) 4 NWLR (PT 67) 797; Fawehinmi v. President, Federal Republic of Nigeria (2007) 4 NWLR (PT 1054) (no page reference was given) and SPDC & 5 Ors v. Nwaka & Anor (2001) 10 NWLR (PT 720) 64 at 82-83, per Acholonu, JCA, as he then was. Counsel concluded on this issue by submitting that, as legal practitioners, Appellants are well clothed with standing to file the summons.
On issue 2 relating to the trial Court’s decision that they did not disclose any cause of action, Mr. Edun on their behalf referred us to the unchallenged affidavit supporting their summons where Respondent declared 58 days long vacation period, which they contend is in excess of the maximum period provided for in Delta State High Court (Civil Procedure) Rules 2009. Counsel also argued that what is not challenged is deemed admitted so there was no basis for the Court’s holding that Appellants did not state in their affidavit that (1) clients briefed them; (2) that they had license to practice in the period they complained of, and/or (3) that there was no avenue for cases to be filed or Judges were not available to hear such cases during the long vacation. The ruling of the trial Judge, counsel thus complained, was perverse as it misconceived the essence of their action.
On issue 3, counsel submitted that the trial Judge by simply upholding the objection and failing to pronounce on the merits of Appellants’ summons abdicated his judicial duty to pronounce on the merits of all issues submitted to him, regardless of whatever decision he may have reached on any preliminary objection raised against them. He thus urged us to exercise the powers of rehearing vested on this Court by Section 15 of the Court of Appeal Act and determine the summons on its merit, answer the questions posed by them in it in their favour and grant their claims.
The Respondents on their part supported the decision of the lower Court in all the issues and urged us to dismiss the appeal.
Decision of the Court
Having gone through the sole issue canvassed by Appellants in their summons, one thing that keeps agitating my mind is whether their complaint is still alive and not already rendered academic by passage of time. To properly guide your Lordships on it, I wish to quote Appellants themselves in paragraph 1.1 of their brief of argument where they, in introducing their case to this Court, had this to say about their cause of action and thrust of their case:
“The main issue or thrust of the action was: the interpretation of the law regarding the duration of the annual vacation of the Delta State High Court, as provided by for in the Delta State High Court (Civil procedure) Rules 2009. The action was necessitated by the declarations and directive issued by the Respondent directing that the duration of the annual vacation period of the High Court of Delta State in 2018 shall be 58 days contrary to the 6 weeks (42 days) provided by law. The directive is attached to the affidavit in support of the originating summons as Exhibit TP1. (Italics mine).
The said Exhibit TP1 reads thus:
DIRECTIONS UNDER SECTIONS 35 and 36 of the High Court Cap. H3, Volume 3, Laws of Delta State (Civil Procedure) Rules 2009, I, Hon. Justice Marshal Umukoro, Chief Judge of Delta State hereby make this notification as follows:
1. ….(not applicable).
2. …..(not applicable).
3. The Annual Vacation for the High Court of Delta State shall be 42 working days (six weeks) that is from Wednesday the 1st of August 2018 to Thursday 27th day of September, 2018. The 2017/2018 Legal Year shall commence on Friday the 28th day of September, 2018.
4. Vacation Judges shall be assigned to sit in Asaba for the Delta North Senatorial District, Warri for Delta South Senatorial District and Ughelli for Delta Central Senatorial District during the vacation period.
sgd
HON. JUSTICE MARSHAL UMUKORO
CHIEF JUDGE
Friday 1st December 2017.
This Directive of the Respondent, it must be noted, dealt only with the duration of the long vacation of the High Court of Delta State for the year 2018 and never purported to declare that of even 2019 let alone any other year. The said 2018 Long Vacation of the Delta State High Court has since come and gone about four years or so ago. That being the position, it necessarily means that Appellants’ complaints in their originating summons, for which they promptly took out summons on 17-1-2018 and this appeal which stem from the lower Court’s decision on it, have long become moot and academic and so does not deserve the precious time of this Court deciding it. See Frank Okon Daniel v. Independent National Electoral Commission & Ors (2015) LPELR-24566(SC) where it was said by Rhodes-Vivour, JSC, at p.34 that:
“Courts should not engage in academic issues/exercise. They should spend judicial time resolving live issues. A Court is never the proper forum for academic exercise. Academic issues lead nowhere; they only satisfy counsel that he has resolved a trivial issue or no issue at all, but with great expense to the litigant and exhausting the energy of judicial officers.”
Even the fact that the opinion of this Court on Appellants’ complaint may assist any or both parties in the future in arranging their affairs is no answer, for Courts do not give advisory opinions. See on that, the case of Attorney General of the Federation v. ANPP (2003) LPELR-630 (SC) P.35-36, (2003) 18 NWLR (PT 851) 182 where it was said by Uwaifo, J.S.C., at @ p. 215 thus:
“…….in a 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. And I think the fact that the decision may help one of the parties to redirect its affairs in an entirely different or probably anticipated situation is irrelevant.”
His Lordship (Uwaifo, JSC) expatiated further on the issue when, after citing Viscount Simon L.C. in Sun Life Assurance Company of Canada v. Jervis (1949) AC 110 at 113-114, he went on to say as follows at p. 36-37 LPELR:
“The pronouncement of Viscount Simon L.C. in Sun Life Assurance Company of Canada v. Jervis (1949) AC 110 at 113 -114 covers, in my view, this very principle I have stated and it deserves to be quoted inter alia:
‘The House should decline to hear this appeal on the ground that there is no issue before us to be decided between the parties. …. I do not think that it would be a proper exercise of the authority which this House possesses to hear appeals if it occupies time in this case in deciding an academic question, the answer to which cannot affect the respondent in any way. If the House undertook to do so, it would not be deciding an existing lis between parties who are before it, but would merely be expressing its views on a legal conundrum which the appellants hope to get decided in their favour without in any way affecting the position between the parties. …
‘No doubt, the appellants are concerned to obtain, if they can, a favourable decision from this House because they fear that other cases may arise under similar documents in which others who have taken out policies of endowment assurance with them will rely on the decision of the Court of Appeal, but if the appellants desire to have the view of the House of Lords on the issue on which the Court of Appeal has pronounced, the proper and more convenient course is to await a further claim and to bring that claim, if necessary, up to the House of Lords with a party on the record whose interest it is to resist the appeal. …….…. and I think it is an essential quality of an appeal fit to be disposed of by this House that there should exist between the parties a matter in actual controversy which the House undertakes to decide as a living issue.’
His Lordship finally rounded up thus:
“As I have said and as can be seen from the observation quoted above, the reliefs sought in this Court having ceased to be of any relevance to support a living issue between the parties, this appeal is of mere academic interest. In the circumstances, I will dismiss the appeal. In the result, I strike out the suit and strike out the application of Alhaji Waziri. I make no order for costs.”
I propose to follow that lead. Accordingly, I hereby strike out this appeal.
Parties shall bear their costs.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother BOLOUKUROMO MOSES UGO, JCA.
For the more detailed reasoning in the lead judgment, I also agree that this appeal is bereft of any live issue. I accordingly strike it out.
I adopt the consequential orders in the lead judgment as mine.
SYBIL NWAKA GBAGI, J.C.A.: My Lord BOLOUKUROMO MOSES UGO, JCA, had obliged me with the draft of the judgment of this Court which he has delivered. I agree with my brother’s justice that the reliefs sought having ceased to be of any relevance to support a living issue between the parties, this appeal is of mere academic interest.
Consequently, this suit is struck out and I abide by the consequential order.
Appearances:
Miss O.F. Esekhaigbe, holding the brief of Olukunle Oghene-ovo Edun Esq. For Appellant(s)
O. Erebe Esq., Solicitor General & Permanent Secretary, Delta State Ministry of Justice with him C.O. Agbagwu Esq., Deputy Director, and U.P. Okolotu Esq., S.S.C, all of the Delta State Ministry of Justice for Respondent. For Respondent(s)
