CHIEF OBASI LAWSON v. ELDER CHINEDU OKORONKWO & ORS
In The Supreme Court of Nigeria
On Friday, the 14th day of December, 2018
SC.15/2018
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria
EJEMBI EKO Justice of The Supreme Court of Nigeria
Between
CHIEF OBASI LAWSON Appellant(s)
AND
- ELDER CHINEDU OKORONKWO
2. ALHAJI ABUBAKAR MAIGANI SHETTIMA
3. ALHAJI DANLADI PASALI
4. BOLA ADELEKE
5. DR. LEO NKAMEME
6. ALH. YAKUBU ALI DIMKA
7. CHIEF J.D. UBINI
8. ALH. DR. HAMMED ADEKUNLE FASHOLA
9. ALHAJI UMAR BABA KANO
10. CHIEF EZEKWESILI MADUAGUWUNA
11. ALHAJI YAKUBU SULIEMAN Respondent(s)
RATIO
EFFECT OF UNDISPUTED OR UNCHALLENGED
The law is trite and clear: facts not disputed or challenged are deemed to have been accepted and/or admitted by the party against whom they are averred. This Court has stated so loudly in a number of cases, including ODULAJA v. HADDAD (1973) 11 SC 35; OMOREGBE v. LAWANI (1980) 3 – 4 SC 10; OKUPE v. IFEMEMBI (1974) 3 SC 97, DUROSARO v. AYORINDE (2005) 8 N.W.L.R. (Pt. 927) 407; AJAGBE v. IDOWU (2011) LPELR. – 279 (SC). PER EJEMBI EKO, J.S.C.
WHAT ARE TERMS OF SETTLEMENT
In the spirit of the role of the judex, which is to encourage amicable settlement of dispute out of Court, terms of settlement are a major pillar in modern adjudication. Terms of Settlement are amicable settlement by parties out of Court of their dispute without going to the merits of the matter or appeal. Terms of Settlement, according to Black’s Law Dictionary 9th Edition, form or constitute a compromise agreement between the parties in litigation. It is a contract whereby new rights are created in substitution for and in consideration of the abandonment of the claim or claims pending the Court. The essence of this compromise agreement, in the words of Adekeye, JSC in S.P.M. Ltd v. ADETUNJI (2009) 13 N.W.L.R. (Pt. 1159) 647 (SC), “is to put a stop to litigation between the parties just as much as is a judgment which results in the normal proceedings in a matter heard on its merits.” It is not, however, a judgment on the merits of the case, though it creates an enforceable right. PER EJEMBI EKO, J.S.C.
POSITION OF THE LAW ON WHEN AN APPEAL BECOMES INCOMPETENT
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 – 637. PER EJEMBI EKO, J.S.C.
EFFECT OF A MOTION ON NOTICE WHICH CHALLENGES THE COMPETENCE OF AN APPEAL AND ALSO SEEKS TO TERMINATE THE LIFE OF THE APPEAL FOR THE SAID INCOMPETENCE
When this motion was heard, Mr. Joe Agi, SAN, of Counsel for the Appellant, contended that it is incompetent, having not been brought as Notice of Preliminary Objection because it challenges the competence of the appeal. This to me appears to be distinction or objection as to the form and not the substance. In KALAGBOR v. INEC & ORS (2008) LPELR 4387 (CA) lbiyeye, JCA, relying on this Court’s definition of what a Notice of Preliminary is, states that a motion on notice seeking to terminate the life of a suit is a Notice of Preliminary Objection. Persuaded by this apt definition of what Notice of Preliminary Objection is, I hereby adopt it. He says: It is instructive – to say that a motion by which a Respondent challenges the competence of a suit (or appeal) and thus the jurisdiction of the Court (otherwise called a Notice of Preliminary Objection) is a special procedure whereby the Respondent contests the competence of a suit (or appeal) and the jurisdiction of Court, and if upheld has the effect of terminating the life of the suit (or appeal) by its being struck-out. See GALADIMA v. TAMBAI (2000) 6 S.C.N.J. (Part 1) 195 at 206. That is why it is provided in Order 2 Rule 9 (1) of the extant Supreme Court Rules that: A Respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and file such notice together with ten copies thereof with the Registrar within the same time. Finding no difference between a motion on notice, which challenges the competence of an appeal and which also seeks to terminate the life of the appeal for the said incompetence, and a Notice of Preliminary Objection, except may be mere semantics; I hereby dismiss outrightly the contention of the learned Senior Counsel for the Appellant. The Respondents’ motion on Notice filed on 6th September, 2018 is, in both intent and substance, a Notice of Preliminary within the con of Order 2 Rule 9 (1) of the Rules of this Court. It shall be treated as such. PER EJEMBI EKO, J.S.C.
DUTY OF THE COURT TO REFRAIN FROM DELVING INTO ACADEMIC OR HYPOTHETICAL ISSUES
…the appeal has become academic. The duty of the Court is to determine live issues. It has no business delving into academic or hypothetical issues. Judicial time is too precious for such an exercise. See: Bakare Vs. A. C. B. Ltd. (1986) 3 NWLR (Pt. 26) 47; Okulate Vs. Awosanya (2000) 2 NWLR (Pt. 645) 530; F. R. N. Vs. Borisade (2015) LPELR 24301 (SC) @ 22 23 F B. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): The main appeal and the challenge to the competence of the appeal, vide the motion on notice filed on 6th September, 2018 challenging the competence of the appeal, were argued together on 25th September, 2018. The said Motion on Notice prays for –
An Order striking out the Notice of Appeal No. SC.15/2018 dated 19th day of February, 2018 and filed on 20th February, 2018 by the Appellant in this appeal and/or dismissing the appeal for being incompetent and a mere academic exercise.
The motion was predicated on the following grounds –
a. The purported tenure of the Appellant as the National President of IPMAN commenced on the 20th day of March, 2014 by virtue of the judgment of the Federal High Court, Port-Harcourt in (the) suit No. FHC/PH/CS/12/2014 – AUSCO OIL LIMITED & 17 ORS v. REGISTERED TRUSTEES OF IPMAN & 9 ORS delivered on the 20th March, 2014.
b. The purported appointment of the Appellant by the Federal High Court, Port-Harcourt in the aforementioned judgment in suit No. FHC/PH/CS/12/2014 was made pursuant to the
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purported IPMAN 1997 Constitution which in its Article XI(viii) provides for a Tenure of 3 years for the office of the National President.
c. That as at 20th day of February, 2018 when this appeal was filed, the Appellant no longer has any enforceable rights and obligations being that the said Appellant’s three (3) years tenure of the purported office of IPMAN National President had expired on the 20th day of March, 2014.
d. The Respondents shall rely on the Notice of Appeal filed on the 20th day of February, 2018 by the Appellant, the Appellant’s Brief of Argument filed in the Appeal on the 28th day of July, 2018, the motion for Stay of Execution filed on (the) 27th day of July, 2018 and all other processes with documents attached as exhibits therein.
On 14th September, 2018 the Appellant, as the Respondent in the motion filed on 6th September, 2018 challenging the competence of his appeal, filed a counter-affidavit wherein it is averred inter alia that “all the parties” to suit No. FHC/PH/CS/12/2014, who were “all parties before the Court of Appeal Port-Harcourt, on 17th May, 2016 filed Terms of
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Settlement before the Court, – wherein they unanimously agreed amongst other things,” that –
“Chief Obasi Lawson (the Appellant herein) shall be, and remain, the National President of IPMAN in line with the Constitution of Independent Petroleum Marketers Association of Nigeria (IPMAN) 2009 (As Amended) with a tenure of office of Five (5) years. His tenure shall begin to run from the date this Terms of Settlement is filed at the Court (of Appeal) and/or adopted and entered by the Court as Consent Judgment in accordance with the said Constitution.
It is hereby affirmed that the Constitution of Independent Petroleum Marketers Association of Nigeria 2009 (As Amended) guarantees a tenure of Five (5) years for its officers at all levels of leadership of the association from the National to the Zonal and Unit Level.”
The Appellant’s Counter-Affidavit did not aver that this Terms of Settlement (Annexture 1), filed on 17th June, 2016 at the Court of Appeal, had been adopted by the Court and entered as the judgment of the Court of Appeal in the appeal No. CA/PH/275 2014 lodged against the orders made on 20th March, 2014 in the suit No. FHC/PH/CS/12/2014. One thing
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is very obvious – the Terms of Settlement, if at all, seems to have significantly varied the orders made by the Federal High Court in the suit No. FHC/PH/CS/12/2014, which orders are the subject of the appeal No. CA/PH/275/2014. I notice, from my comparison of the Particulars (VI) of paragraph 6 of the said Counter-Affidavit with Paragraph 7 at page 3 of Annexure 1 to the Counter-Affidavit, some unfortunate misleading embellishment. The words:
It is hereby affirmed that the Constitution of the Independent Petroleum Marketers Association of Nigeria 2009 (As Amended) guarantees a tenure of office of five (5) years for its officers at all levels of leadership of the Association from the National to the Zonal and Unit levels:
are not found in the of Annexture 1 to the Counter-Affidavit (which is Respondent’s Exhibit B).
Exhibit A, in the affidavit supporting the motion filed on 6th September, 2018, is the judgment of the Federal High Court in the suit No. FHC/PH/CS/12/2014 dated 20th March, 2014. The order No. 4 at page 91 thereof is as follows –
4. That the 6th Plaintiff, Chief Obasi Lawson (the Appellant herein) shall forthwith be the National
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President of the 1st Defendant, the Independent Petroleum Marketers Association of Nigeria (IPMAN) pursuant to Article IV of the Constitution of the said 1st Defendant made on 14th September, 1997.
The Respondents/Applicants filed a Further and Better Affidavit on 13th September, 2018 in response to the Counter-Affidavit filed at the instance of the Appellant. In the Further and Better Affidavit the Respondents denied their being party to the alleged Terms of Settlement filed on 17th June, 2016 at the Court of Appeal in the Appeal No. CA/PH/275/2014. On this, the Appellant failed to join issues. The law is trite and clear: facts not disputed or challenged are deemed to have been accepted and/or admitted by the party against whom they are averred. This Court has stated so loudly in a number of cases, including ODULAJA v. HADDAD (1973) 11 SC 35; OMOREGBE v. LAWANI (1980) 3 – 4 SC 10; OKUPE v. IFEMEMBI (1974) 3 SC 97, DUROSARO v. AYORINDE (2005) 8 N.W.L.R. (Pt. 927) 407; AJAGBE v. IDOWU (2011) LPELR. – 279 (SC). I therefore accept, as denied by the Respondents, that they were not party or privy to the Terms of Settlement
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allegedly filed at the Court of Appeal in the appeal No. CA/PH/275/2014. It is clear to me also, and I so hold that the Court of Appeal has not adopted the Terms of Settlement as the judgment of the Court in the appeal No. CA/PH/275/2014.
Exhibit B in the Supporting Affidavit in the motion filed on 6th September, 2018 is the 1997 Constitution of IPMAN. Article XI (viii) of the said Constitution, as averred by the Respondents provides –
Each Officer shall hold office for a term of three years only or less, as the case may be that is to say beginning from the month of his election to the end of the current term for all other officer. However, the 3-year term is applicable to National Officers only.
I entertain no doubt whatsoever, from the available evidential materials, that when the Federal High Court, Port-Harcourt (per Akanbi, J) made the order No. 4 in the suit No. FHC/PH/CS/12/2014 on 20th March, 2014; that the Appellant herein, as Chief Obasi Lawson “shall forthwith be the National President of IPMAN pursuant to “the 1997 IPMAN Constitution, it had in mind a three year tenure for
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the Appellant beginning from the date of the order. The Terms of Settlement, flaunted by the Appellant and vehemently denied by the Respondents, is not only an attempt at tenure elongation but also an ingenious effort being made to alter the order made by the Federal High Court in suit No.FHC/PH/CS/12/2014 which is a subject of the subsisting appeal No. CA/PH/275 2014.
In the spirit of the role of the judex, which is to encourage amicable settlement of dispute out of Court, terms of settlement are a major pillar in modern adjudication. Terms of Settlement are amicable settlement by parties out of Court of their dispute without going to the merits of the matter or appeal. Terms of Settlement, according to Black’s Law Dictionary 9th Edition, form or constitute a compromise agreement between the parties in litigation. It is a contract whereby new rights are created in substitution for and in consideration of the abandonment of the claim or claims pending the Court. The essence of this compromise agreement, in the words of Adekeye, JSC in S.P.M. Ltd v. ADETUNJI (2009) 13 N.W.L.R. (Pt. 1159) 647 (SC), “is to put a stop to litigation between the parties just
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as much as is a judgment which results in the normal proceedings in a matter heard on its merits.” It is not, however, a judgment on the merits of the case, though it creates an enforceable right.
When this motion was heard, Mr. Joe Agi, SAN, of Counsel for the Appellant, contended that it is incompetent, having not been brought as Notice of Preliminary Objection because it challenges the competence of the appeal. This to me appears to be distinction or objection as to the form and not the substance. In KALAGBOR v. INEC & ORS (2008) LPELR 4387 (CA) lbiyeye, JCA, relying on this Court’s definition of what a Notice of Preliminary is, states that a motion on notice seeking to terminate the life of a suit is a Notice of Preliminary Objection. Persuaded by this apt definition of what Notice of Preliminary Objection is, I hereby adopt it. He says:
It is instructive – to say that a motion by which a Respondent challenges the competence of a suit (or appeal) and thus the jurisdiction of the Court (otherwise called a Notice of Preliminary Objection) is a special procedure whereby the Respondent contests the competence of a suit (or appeal)
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and the jurisdiction of Court, and if upheld has the effect of terminating the life of the suit (or appeal) by its being struck-out. See GALADIMA v. TAMBAI (2000) 6 S.C.N.J. (Part 1) 195 at 206.
That is why it is provided in Order 2 Rule 9 (1) of the extant Supreme Court Rules that:
A Respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and file such notice together with ten copies thereof with the Registrar within the same time.
Finding no difference between a motion on notice, which challenges the competence of an appeal and which also seeks to terminate the life of the appeal for the said incompetence, and a Notice of Preliminary Objection, except may be mere semantics; I hereby dismiss outrightly the contention of the learned Senior Counsel for the Appellant. The Respondents’ motion on Notice filed on 6th September, 2018 is, in both intent and substance, a Notice of Preliminary within the con of Order 2 Rule 9 (1) of the Rules of this Court. It shall be treated as such.
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At this juncture it is necessary that a sketch history of appeal No. SC.15/2018, which has attracted the Preliminary Objection, be given. A leadership crisis errupted in IPMAN. This has led to litigations, amongst which are: suit No. NSD/LF/78/2009 at the High Court of Nassarawa State. It is still pending. The Plaintiffs in that suit obtained against the Defendants including the present Appellant, who is the 1st Defendant in that suit an order of interlocutory injunction on 16th September, 2009 restraining the Defendants from parading themselves as National Executives of IPMAN pending the determination of the suit. The Appellant, as the 1st Defendant, allegedly held himself out, before the filing of suit: NSD/LF/78/2009, as the National President of IPMAN. See Exhibit D at page 99 – 100 of the Record of Appeal.
Notwithstanding the subsistence of suit No. NSD/LF/78/2009 and the Interlocul)ry Order made therein, the Appellant (as the 6th Plaintiff) and others approached the Federal High Court, Port-Harcourt, and took out the suit No. FHC/PH/CS/2014 against the immediate past National Executives of IPMAN. The Defendants in that suit appealed.
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That is the genesis of the appeal No. CA/PH/275/2014. They immediately filed, on 3rd April, 2014 an application for interlocutory injunction and an order of stay of execution of the orders in suit No. FHC/PH/CS/12/2014 pending the determination of their appeal No. CA/PH/275/2014. See Exhibits B & C to the supporting affidavit at pages 11 – 47 of the Record.
The Defendants in FHC/PH/CS/12/2014, now Appellants in CA/PH/275/2014, purporting to be entitled to remain in office, held themselves out as incumbent National Executives of IPMAN. They conducted elections on 10th May, 2014 and a new set of National Executives were purportedly elected.
The Appellant’s faction fixed the AGM of IPMAN for 13th May, 2014 during which their factional National Executive Council would be elected. The Appellant, who meanwhile had been performing and discharging the functions of National President of IPMAN by virtue of the order he obtained from the Federal High Court in suit No. FHC/BH/CS/12/2014, was alleged to be acting in concert with the Inspector General of Police (IGP) and the Commissioner of Police (FCT). At the High Court of the
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Federal Capital Territory (FCT) the Respondents, as Plaintiffs, sued the Appellant, the Commissioner of Police (FCT) and the IGP in the suit No. FCT/HC/1479/2014. The suit, on the Originating Summons, was taken out on 12th May, 2014 by the National Executive Officers, said to have been elected on 10th May, 2014.
Against the hearing of the suit No. FCT/HC.1479/2014 at the FCT High Court the Appellant, as the 1st Defendant, filed a Notice of Preliminary Objection. The Objection and the substantive suit were heard together and a composite decision was delivered on 28th May, 2014. It appears from the Records that, inspite of the pendency of the suit No. FCT/HC.1479/2014, the Appellant’s faction conducted election to fill the other vacancies purportedly existing in the National Executive Council of IPMAN, himself having been sworn-in as the National President of IPMAN on 20th March, 2014, pursuant to Order No. 4 made in that regard by the Federal High Court in suit No. FHC/PH/CS/12/2014.
The FCT High Court, on 28th May, 2014, overruled the Preliminary Objection of the Appellant. On the merits; the Court restrained him from further interfering
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with the administration, management and control of IPMAN. He was also restrained from doing anything capable of prejudicing the hearing and determination of the pending motion for interlocutory injunction and stay of execution of the decision of the Federal High Court Port Harcourt in suit No. FHC/PH/CS/12/2014 pending the determination of the appeal – CA/PH/275/2014. The FCT High Court, on the said 28th May, 2014, further nullified the purported swearing-in of the Appellant on 20th March, 2014 and the election of the other National Executive Officers conducted earlier in May, 2014 by the Appellant’s faction. See pages 637 and 638 of the Record. This is what agitated the present appeal.
At the risk of repetition, the Appellant by the end of March, 2017 had been in the office of the President, IPMAN and discharging same for over 3 years.
The Respondents posit, in this Preliminary Objection, that the Appellant’s hold to the office as National President of IPMAN by virtue of the Federal High Court order of 20th March, 2014 by which he assumed the office of National
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President of IPMAN in accordance with the 1997 Constitution had lapsed by effluxion of time. And that by dint of the said order the Appellant held his office for three (3) years from the said 20th March, 2014. The Respondents further contend that by the lapse of his three year tenure this appeal, designed to secure that office, has become academic after 20th March, 2017.
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 – 637.
This now takes me to the purported Terms of Settlement filed at the Registry of the Court of Appeal, Port-Harcourt in the Appeal: CA/PH/275/2014 on 17th June, 2016. The purported Terms of Settlement was vigorously contested, and vehemently denied, in paragraph 9 (f) & (g) of the Further and
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Better Affidavit filed by the Respondents/Objectors on 18th September, 2018. Curiously, the said averments were not challenged or disputed. The Appellant had between 18th and 25th days of September, 2018 to challenge or dispute those averments. He however, chose to remain taciturn. As I earlier stated in this judgment: Facts not disputed by the party against whom they are averred are taken as admitted. The averments in paragraph 9 (f) & (g) not denied/disputed and therefore deemed admitted are as follows –
(f) Paragraph 6(vii) of the Appellant’s Counter-Affidavit filed on 14 September, 2018 is false and not true. The truth is that the purported Annexture 1 (the purported Terms of Settlement) referred to by the Appellant was never the agreement of all parties before the Court of Appeal Port-Harcourt Division, as alleged by the Appellant. The said appeal pending before the Court of Appeal in Appeal No. CA/PH/275/2014 wherein the purported Annexture 1 was filed is an appeal of 8 Appellants and 20 Respondents. The purported Annexture 1 was only signed by the 2nd Appellant and the 6th Respondent (that is the Appellant on record (herein) in a case of 28 parties. The purported
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Terms of Settlement filed on 17th June, 2016 is hereby annexed as Exhibit B.
(g) In further response to the Appellant’s paragraph 6 (vi), I state that the said Annexture 1 (the Terms of Settlement now Exhibit B) has not been adopted by the Court of Appeal, as such does not have force of Law. Besides, the 3rd, 4th, 5th, 6th and 7th Appellants who are also members of the IPMAN Board of Trustees and the 8th Appellant as well as the 1st, 2nd, 11th and 12th Respondents to that appeal pending in the Court of Appeal, Port Harcourt Division have filed various affidavits challenging the purported terms of settlement (Annexture 1). The 3rd Appellant’s affidavit was filed on the 11th November, 2016 and all others were filed on the 2nd February, 2018 after the judgment of the Court of Appeal Division of 7th December, 2017 was delivered. In their affidavits they completely agree, embrace and are all in full support of the instant judgment appealed against. And they have also averred that they were not part of the Annexture 1 (the Respondent’s Exhibit B). Copies of all the aforementioned affidavits are hereby annexed as Exhibits C, D, E, F, G, H and I respectively.<br< p=””
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Terms of settlement, being a compromise agreement by the parties in litigation; the party relying on it must show, (and Sections 131 and 132 of the Evidence Act, 2011 very clear on this, brook of no ambiguity), that there was consensus ad idem that the out of Court settlement be reached before the Terms of Settlement was duly filed. It is incumbent on the party asserting a fact to prove his assertion in order to succeed. One party in litigation cannot unilaterally foist on the other party, his adversary, in litigation Terms of Settlement as a compromise agreement. Paragraph 9 (f) & (g) of the Better and Further Affidavit establish a unilateral declaration Terms of Settlement without consensus ad idem of what the Appellant filed on 17th June, 2016 stands for.
Even if I agree with Joe Agi, SAN, for the Appellant that Order No. 4 made on 20th March, 2014 by the Federal High Court in the suit No. FHC/PH/CS/12/2014 has not been validly set aside by a Court superior to the Federal High Court, the fact still remains that by the said Order the three (3) year period the Appellant would hold the office commenced in March, 2014 and ended in March, 2017. That
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Order has not been compromised by any valid Terms of Settlement. The purported Terms of Settlement (Annexture 1 or Exhibit B) filed at the Registry of the Court of Appeal, Port Harcourt on 17th June, 2016 remains, in my firm view, a strong corroboration of the shenaniganism of the Appellant and his determination to remain the National President of IPMAN beyond the term of 3 years commencing on 20th March, 2014 vide the Order of the Federal High Court, Port Harcourt in the suit No. HC/PH/CS/12/2014. The instant appeal, in view of the lapse of that tenure by effluxion of time, would now serve or confer no practical utilitarian value on the Appellant. The appeal is now academic.
The preliminary objection is hereby sustained. This appeal, being now academic and incompetent, is hereby struck out.
Costs assessed at N2,000,000.00 shall be and is hereby awarded against the Appellant herein in favour of the Respondents jointly/or severally.
MUSA DATTIJO MUHAMMAD, J.S.C.: My learned brother EJEMBI EKO JSC has obliged me before now his lead judgment just delivered. I too do hereby uphold the
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preliminary objection against the appeal and in consequence strike out same for being academic. I abide by the order of costs made in the lead judgment.
KUMAI BAYANG AKA’AHS, J.S.C.: I was privileged to read before now the judgement of my learned brother, Eko JSC upholding the preliminary objection filed by the respondents and striking out the appeal as being academic and incompetent. I agree.
In Suit no. FHC/PH/CS/12/2014 judgement was delivered by the Federal High Court on 20 March, 2014 wherein the trial Judge made the following order in respect of the appellant/respondent:-
“That the 6th Plaintiff, Chief Obasi Lawson (the appellant herein) shall forthwith be the National President of the 1st defendant, the Independent Petroleum Marketers Association of Nigeria (PMAN) pursuant to Article 1V of Constitution of the said 1st Defendant made on 14th September, 1997”.
Article XI (viii) of the Constitution of IPMAN provides as follows:-
“Each Officer shall hold office for a term of three years only or less, as the case may be that is to say beginning from the month of his election to the end of
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the current term for all other officers. However, the 3 year term is applicable to National Officers only”.
When the Federal High Court, Port Harcourt (per Akanbi J.) made the order in Suit No. FHC/PH/CS/12/2014 on 20th March, 2014 that Chief Obasi Lawson
“shall forthwith be the National President of IPMAN pursuant to the 1997 IPMAN Constitution”, it had in mind a three year tenure for the appellant beginning from the date of the order.
After the appellant had filed the Notice of Appeal, the respondents on 6th September, 2018 filed a motion challenging the competence of the appeal and prayed for
An Order striking out the Notice of appeal No. SC. 15/2018 dated 19th day of February, 2018 and filed on 20th February, 2018 by the appellant in this appeal and/or dismissing the appeal for being incompetent and a mere academic exercise.
The grounds upon which the motion was based are:-
(a) The purported tenure of the appellant as the National President of IPMAN commenced on the 20th day of March 2014 by virtue of the judgement of the Federal High Court Port-Harcourt in Suit No. FHC/PH/CS/12/2014. PRESIDENT AUSCO OIL LIMITED &
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17 ORS v. REGISTERED TRUSTEES OF IPMAN & 9 ORS delivered on the 20th March, 2014.
(b) The purported appointment of the Appellant by the Federal High Court, Port-Harcourt in the aforementioned judgement in Suit No. FHC/PH/CS/12/2014 was made pursuant to the purported IPMAN 1997 Constitution which in its Article Xl(viii) provides for a tenure of 3 years for the office of the National President.
(c) That as at 20th day of February, 2018 when this appeal was filed, the appellant no longer has any enforceable rights and obligations being that the said appellant’s three (3) years tenure of the purported office of IPMAN National President had expired on the 20th day of March, 2014.
(d) The respondents shall rely on the Notice of Appeal filed on the 20th day of February, 2018 by the appellant; the appellant’s brief of argument filed in the appeal on the 28th day of July, 2018 and all other Court processes with documents attached as exhibits therein.
The appellant filed a counter-affidavit to the motion challenging the competence of the appeal wherein he averred in paragraph 6(iv),(v),(vi) that:-
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“6(iv) the same date the judgement was delivered, a notice of appeal dated 20th March, 2014 was filed against the said judgement of the Federal High Court by some of the parties in the suit and the appellant herein who was the 6th Plaintiff in the suit before the Federal High Court, Port Harcourt was served the said notice of appeal. In addition, he was also served a motion on notice for injunction restraining the plaintiffs/respondents, their agents assign, servants, privies or whomsoever acting on their behalf from executing and or enforcing or taking any step whatever to enforce and to execute the judgement delivered by this Honourable Court on the 20 March, 2014 in the suit pending the hearing and determination of the appeal filed by 1-8th defendants/applicants. The motion on notice also contained prayers for an order staying execution of the judgement made by the Federal High Court on 20 March, 2014 in the suit pending the hearing and determination of the appeal filed by the 1st-8th defendants/applicants.
(v) Being a law abiding citizen and whose conduct is consistent with rule of law, the appellant herein who was the 6th plaintiff before the Federal High Court,
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Port-Harcourt filed processes at the Federal High Court, Port Harcourt and the Court of Appeal, Port Harcourt in response to the appeal which was later entered and in response to the motion on notice/stay of execution pending appeal.
(vi) Thereafter, all parties before the Court of Appeal, Port Harcourt on 17th May, 2016 filed terms of settlement before the Court, attached herewith as Annexture 1 wherein they unanimously agreed amongst other things that:-
‘Chief Obasi Lawson shall be and remain the National President of IPMAN in line with the Constitution of independent Petroleum Markers Association of Nigeria (IPMAN) 2009 (as amended) with a tenure of office of Five (5) year. His tenure shall begin to run from the date this Terms of Settlement is filed at the Court and/or adopted and entered by the Court as consent judgement in accordance with the said constitution’.
The respondents/applicants filed a further and better affidavit on 13th September, 2018 denying their being party to the alleged Terms of Settlement filed on 17 June, 2016 at the Court of Appeal in appeal no. CA/PH/275/2014. Therefore the said terms of settlement cannot be used to elongate the appellant’s tenure.
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Apart from this there is suit no. NSD/LF/78/2009 pending before the Nasarawa State High Court wherein the plaintiffs obtained against the Defendants including the present appellant who is the 1st defendant in that suit an order of interlocutory injunction restraining the Defendants from parading themselves as National Executives of IPMAN pending the determination of the suit. The appellant as defendant allegedly held himself out as the National President of IPMAN pending the determination of the suit. In suit no. FHC/PH/CS/12/2014 the defendants including appellant held themselves out as incumbent National Executives of IPMAN. They conducted elections on 10th May, 2014 and a new set of National Executives were purportedly elected. All these processes go to show that the respondent was never restrained from operating as the National President of IPMAN since 20th March, 2014. And going by the Constitution of IPMAN, the respondent has nothing to protect or gain from continuing with appeal No. SC.15/2018. The preliminary objection therefore succeeds and is upheld. The appeal is accordingly struck out as being academic.
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I endorse the order of costs of N2,000,000.00 against the respondent in favour of the applicants as pronounced by my learned brother, Eko JSC in the leading Ruling.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have read in draft, the judgment of my learned brother, EJEMBI EKO, JSC just delivered. I agree with him that the preliminary objection filed by the respondents has merit and deserves to be sustained.
My learned brother has given a comprehensive summary of the facts that gave rise to this appeal. I adopt the summary in adding a few words in support of the lead judgment.
This appeal is a fallout of the leadership tussle among members of the Independent Petroleum Marketers Association of Nigeria (IPMAN) which has persisted for quite some time.
The Federal High Court, Port Harcourt Division in suit No. PHC/PH/CS/12/2014: AUSCO Oil Ltd. & 17 Ors. Vs. Registered Trustees of IPMAN & 7 Ors., delivered its judgment on 20th March, 2014. The appellant herein was the 6th plaintiff in the suit. Judgment was entered in favour of the plaintiffs. Some of the reliefs granted, which
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directly affected the appellant are as follows:
“1. That the appointment and recognition of the 2nd Defendants as the Trustees of the 15th Defendant, be and is hereby set aside.
2. That the amendment of the Constitution of the 1st Defendant wrongfully carried out by the 1st – 8th Defendants on 24th February, 2011 and wrongfully registered and recognised by the 10th Defendant, is hereby set aside.
3. That the purported National Executive Committee of the 1st Defendant headed by the 2nd Defendant as National President and the 8th Defendant as National Secretary respectively be and is hereby set aside.
4. That the 6th plaintiff, Chief Obasi Lawson shall forthwith be the National President of the 1st Defendant, the Independent Petroleum Marketers Association of Nigeria (IPMAN) pursuant to Article IV of the Constitution of the said 1st Defendant made on 14th June 1997.
5. That the 6th plaintiff be and is hereby authorised to organise elections to elect members of the National Executive Committee of the 1st Defendant in accordance with the Constitution of the said 1st Defendant made on 14th June 1997.<br< p=””
</br<
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- That an order of perpetual injunction be and is hereby granted restraining the 2nd 7th Defendants by themselves, servants, agents, privies and/or collaborators from howsoever parading themselves as the Trustees of the 1st Defendant.
(Underlining mine).The Defendants appealed against the judgment. They also filed an application for injunction and stay of execution. In addition, they also filed an Originating Summons before the High Court of the Federal Capital Territory (FCT) vide suit No. FCT/HC/CV/1479: ELDER CHINEDU OKORONKWO & 10 ORS VS. CHIEF OBASI LAWSON, wherein they raised 4 questions for determination and sought several reliefs. Essentially it was their contention that having appealed against the judgment declaring the appellant the National President of IPMAN amongst other reliefs, the matter ought to remain in status quo ante bellum and therefore they, as the leadership of the Association elected on 10/5/2014 were entitled to conduct elections to fill the vacant positions in the Association. They sought, among other reliefs an order of
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perpetual injunction restraining the appellant herein from carrying out or supervising any national election of the Association.
Along with the Originating Summons, a motion ex parte notice for interim injunction and a motion on notice for interlocutory injunction were filed and served was filed by the appellant. The preliminary objection and the Originating Summons were heard together. In a considered judgment delivered on 28/5/2014, the High Court of the FCT entered judgment in favour of the plaintiffs (now respondents) against the appellant.
The Court held, inter alia, that the assumption of office as National President by Obasi Lawson pursuant to the judgment of the Federal High Court, Port Harcourt Division in spite of a pending appeal against the judgment and despite having notice of a motion for stay of execution/injunction, was in violation of the law. He was accordingly restrained from organising or conducting any election into any national executive office in IPMAN. The Court endorsed the election conducted by the plaintiffs on 10th May 2014.
The appellant was aggrieved by this decision and appealed unsuccessfully to the Court below.
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He is still aggrieved and has further appealed to this Court. By his notice of appeal filed on 20/2/2018, the appellant seeks an order setting aside the judgment of the lower Court and dismissing the respondents’ suit at the High Court of the FCT.
The respondents, by their motion on notice filed 6/9/2018 are asking this Court to strike out the notice of appeal on the ground that it has become academic since the appellant’s tenure as IPMAN National President has lapsed by effluxion of time and there is therefore no existing right to protect.
The appellant has vehemently opposed the application and contends that having been served with the notice of appeal against the judgment of the High Court of the FCT and the motion on notice for stay of execution pending appeal, he has not taken any steps towards executing the judgment of the Federal High Court and has not taken any benefit from the said judgment.
The essence of this appeal is to protect or preserve the appellant’s tenure as the National President of IPMAN.
It is not in dispute that by virtue of Article XI (VIII) of the 1997 Constitution of IPMAN, the tenure of the National President
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of the Association is for a period of three years. On 20th March 2014, the Federal High Court, Port Harcourt Division, declared the appellant the National President of the Association and he was authorised to organise elections to elect members of the National Executive Committee in accordance with the aforesaid Constitution.
In paragraphs 9 (d) (xi), (xii), (xiii) and (xiv) of his counter affidavit in opposition to the Originating Summons in the suit before the High Court of the FCT, the appellant averred thus:
“(xi) On 20th March, 2014, the Federal High Court, Port Harcourt coram Akanbi, J. delivered judgment in the matter in which, inter alia, Alhaji Aminu Abdulkadir was removed as the National President and I was declared as the National President. Pursuant to this judgment of the Federal High Court, I was sworn-in on the same 20th March, 2014 as the National President of IPMAN and I have been performing my duties as such since then. Copies of the judgment of the Federal High Court, Port Court and Certificate of Judgment are herein attached as EXHIBITS “B1” and “B2” respectively.
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(xii) In addition to declaring me the National President of IPMAN, the Federal High Court, Port Harcourt also directed and mandated me to organise elections to fill the other positions in the National Executive Committee in line with the 1997 Constitution of IPMAN. The full judgment of the Federal High Court in the said Suit No. FHC/PH/CS/12/2014 is herein annexed as EXHIBIT “B31:
(xiii) Contrary to the deposition and insinuation in paragraphs 4,7, 9, 14, 15, 25, 26 and 28 of the Plaintiffs’ Affidavit in support of the Originating Summons, the Federal High Court, Port Harcourt did not declare me as the interim National President but the substantive National President and I was sworn in as the National President of IPMAN pursuant to the judgment of the Federal High Court on 20th March, 2014 and I have been functioning as such from the association’s Secretariat at No. 41, Gnassingbe Eyadema Street, Asokoro District, Abuja.
(xiv) I did not parade myself as the National President of IPMAN but was so declared by the Federal High Court, Port Harcourt in its aforesaid judgment.”(Underlining mine for emphasis).
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Having averred unequivocally on oath that he has been carrying out his functions as National President since 20th March 2014, the respondents are on firm ground when they contend that his three year tenure has lapsed by effluxion of time. Having served the 3 year term which ended on 19/3/2017, the appellant has no further interest to protect by this appeal.
I agree entirely with my learned brother that the appeal has become academic. The duty of the Court is to determine live issues. It has no business delving into academic or hypothetical issues. Judicial time is too precious for such an exercise. See: Bakare Vs. A. C. B. Ltd. (1986) 3 NWLR (Pt. 26) 47; Okulate Vs. Awosanya (2000) 2 NWLR (Pt. 645) 530; F. R. N. Vs. Borisade (2015) LPELR 24301 (SC) @ 22 23 F B.
It is for these and the more elaborate reasons stated in the lead judgment that I sustain the respondents’ preliminary objection and strike out this appeal.
I abide by the consequential orders as made in the lead judgment.
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CHIMA CENTUS NWEZE, J.S.C.: My Lord, Eko, JSC, obliged me with the draft of the leading judgement just delivered. I, entirely, agree with His Lordship that this appeal, being academic and incompetent, should be struck out.
Contrary to the submissions of the appellant’s senior counsel that the appellant’s tenure as National President of IPMAN did not commence on March 20, 2014, the truth is that it, in fact, did commence on that day, see, the judgement of the Federal High Court, Port Harcourt Judicial Division, in FHC/PH/CS/12/14 – Ausco Oil Ltd and Ors v Registered Trustees of IPMAN, delivered on March 20, 2014.
In the said judgement, the following inter alia were granted to the appellant:
4. That the Sixth plaintiff, Chief Obasi Lawson [the appellant in the present appeal] shall forthwith be the National President of the first defendant, the Independent Petroleum Marketers’ Association of Nigeria [IPMAN] pursuant to Article IV of the Constitution of the said first defendant on 14th June, 1997,
5. That the 6th plaintiff be and is hereby authorized to organize elections to elect members of the National Executive Committee of the first defendant in
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accordance with the Constitution of the said first defendant made on 14th June, 1997; [Italics supplied]
A calm and dispassionate reading of these paragraphs would reveal that the appellant and his other friends were minded to mislead this Court (1) on the day of his assumption of office as the National President of IPMAN and (11) by what authority he was to exercise the functions of that office.
Now, as shown above, Exhibit A is the judgement of the Federal High Court in the above-cited case. It is attached to the affidavit supporting the motion filed on September 6, 2018. The judgement was delivered on March 20, 2014. The fourth order, at page 91, reads thus:
4. That the sixth plaintiff, Chief Obasi Lawson, that is, the appellant in the instant appeal, shall forthwith be the National President of the first defendant, the Independent Petroleum Marketers Association of Nigeria [IPMAN] pursuant to Article IV of the Constitution of the said first defendant made on 14th September, 1997. [Italics supplied]
Effectively, therefore, the Constitutive Instrument to be used in determining his length of time in office is the Constitution
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of the Association, that is, IPMAN, see, Article IV thereof. Indeed, Article XI (VIII) of the 1997 Constitution of IPMAN fixes the tenure of office of National President of the Association for a period of three years.
Instructively, in his paragraph 9 (d)(xi); (xii); (xiii) and (xiv) of his Counter Affidavit in opposition to the Originating Summons in the Suit before the High Court of the Federal Capital Territory, the appellant had averred that:
(Xi) On 20th March, 2014, the Federal High Court, Port Harcourt (Coram Akanbi, J.) delivered judgement in the matter in which, inter alia, Alhaji Aminu Abdulkadir was removed as the National President and I was declared as the National President. Pursuant to this judgement of the Federal High Court, I was sworn-in on the 20th March, 2014 as the National President of IPMAN and I have been performing my duties as such since then. [Italics supplied]
In other words, by his ipsissirna verba, he acknowledged all he had, disingenuously, sought to disclaim in this appeal. Now, the respondents in this appeal contended that the appellant’s said three-year term lapsed by effluxion of time on March 19, 2017.
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Thus, he, [the appellant], had no further interest to protect by this appeal. In other words, this appeal had become academic.
Upon my intimate perusal of the processes, NSD/LF/78/09; FHC/PH/CS/14; CA/PH275/14; FHC/PH/CS/12/14 and FCT/H/1429/14, I take the view that, upon the lapse of his tenure on March 19, 2017, the appellant had become a usurper; an impostor; an impersonator and a chameleonic and unabashed interloper. Thus, by this appeal, and the other suits, in which he claimed to be the rightful occupant of the office of the National President of the association, IPMAN, and indeed, by holding himself out as such, he has been, deliberately, stoking the embers of, and sustaining, the leadership crisis in IPMAN.
This is rather unfortunate. People, such as the appellant, should have their day elsewhere, where the law has, dutifully, created for malcontents who do know the virtue of peaceful association. He should, therefore, leave that exalted office of National President of IPMAN forthwith. Having served his three-year term, he has no interest to protect in this appeal: an appeal which I find to be unmeritorious being an academic venture.
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As it is well-known, in forensic adjudication, academic issues which are, almost always, hypothetical, do not engage the attention of Courts since they are not the proper fora for their ventilation, Imegwu v Okolocha [2013] 9 NWLR (pt 1359) 347; and, above all, they are of no utilitarian value, Abe v UNILORIN [2013] 16 NWLR (pt 1379) 183.
It is for these, and the more elaborate, reasons in the leading judgement that I, too, shall sustain the preliminary objection; strike out this appeal and affirm the costs of N2,000,000, against the appellant in favour of the respondents jointly or severally.
Appeal struck out.
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Appearances:
Joe Agi, SAN with him, J.U.K. lgwe, SAN and Charles Obishai, SAN with him, O.F. Ekengba and Reuben Nwanogha For Appellant(s)
Dr. Onyechi lkpeazu, SAN with him, Chief Karina Tunya, SAN with him, Tobechukwu Nweke, M.J. Numa and Julius Mba for the Respondents.
Ehigie Omoruyi with him, ThankGod I. John and Sunday Adewale for the party interested/Applicant For Respondent(s)
Appearances
Joe Agi, SAN leads J.U.K. lgwe, SAN and Charles Obishai, SAN with him, O.F. Ekengba and Reuben Nwanogha For Appellant
AND
Dr. Onyechi lkpeazu, SAN leads Chief Karina Tunya, SAN with him, T. Nweke, M.J. Numa and Julius Mba for the Respondents.
Ehigie Omoruyi with him, ThankGod I. John and Sunday Adewale for the party interested/Applicant For Respondent
