COMRADE ADAMS ALIYU OSHIOMHOLE & ORS v. HON. ISHOLA BALOGUN FULANI & ORS
(2019)LCN/12722(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of February, 2019
CA/IL/4/2019
RATIO
COURT AND PROCEDURE: WHETHER THE COURT EMBARK ON ACADEMIC EXERCISE
“Thus, in my considered view, it would tantamount to a sheer academic exercise for me to proceed to determine the appeal on the merits. Yet, it is a well settled doctrine, that Courts of law do not embark on academic exercise, due to the fact that they are neither forensic laboratories nor academic institutions. See ADELAJA VS. ALADE (1999) 6 NWLR (Pt. 608) 544; OKULATE VS. AWOSANYA (2000) 2 NWLR (Pt. 646) 530; UBN PLC VS. SEPOK (NIGERIA) LIMITED (1998) 12 NWLR (Pt. 578) 439; NNUBIA VS. AG. RIVERS STATE (1999) 3 NWLR (Pt. 593) 82; A.G. KWARA STATE VS. ALAO (2000) 9 NWLR (Pt. 671) 84.” PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
Between
1. COMRADE ADAMS ALIYU OSHIOMHOLE
(National Chairman, All Progressives Congress (APC)
2. MALLAM MAIMALA BUNI
(National Secretary, All Progressives Congress (APC)
3. ALL PROGRESSIVES CONGRESS (APC)
4. ALL PROGRESSIVES NATIONAL WORKING COMMITTEE Appellant(s)
AND
1. HON. ISHOLA BALOGUN FULANI
(Chairman, All Progressives Congress (APC) Kwara State)
2. PRINCE CHRISTOPHER TUNJI AYENI
(Secretary, All Progressives Congress (APC) Kwara State)
(For themselves and on behalf of members of executive committee of All Progressives Congress (APC) Kwara State)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. HON. BASHIRU BOLARINWA
(For himself and on behalf of members of the so called or purported caretaker committee of Kwara State chapter of All Progressives Congress (APC) Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment):
The extant appeal is against the judgment of the Kwara State High Court, holden at Ilorin Judicial Division which was delivered on December 19, 2018 in Suit No. KWS/292/2018. By the judgment in question, the Court below granted all the thirteen (13) reliefs sought by the 1st and 2nd Respondents against the Appellants and 3rd and 4th Respondents, respectively.
BACKGROUND FACTS
The genesis of the instant appeal could be traced to May 19, 2018. That was the date on which the 3rd Appellant conducted congress in Kwara State. The said congress was however marred with crisis resulting in the dissolution of all the organs of the 3rd Respondent in Kwara State. A Caretaker Committee was appointed by the 4th Appellant to run the affairs of the 3rd Appellant in the State.
Dissatisfied with the dissolution of the State Chapter of the 3rd Respondent, the 1st and 2nd Respondents instituted the suit in question in the Court below, vide an Originating Summons, thereby seeking some declaratory and injunctive reliefs.
By the Amended Originating Summons thereof, dated and filed on October 24, 2018, the 1st and 2nd Respondents sought the determination of five (5) pertinent questions:
1. Whether the Claimants and other members of the Kwara State Executive Committee of the All Progressives Congress (APC) in Kwara State duly elected and sworn-in to their respective offices as State Officers of the All Progressives Congress (APC) in Kwara State on the 19th of May, 2018 in accordance with the Constitution of the All Progressives Congress (APC) are not entitled to remain in office for a period of four (4) years for which they were elected.
2. Whether having regard to the provisions of the 1999 Constitution of the 3rd Defendant and rule of law, the 3rd Defendant has power to dissolve the Kwara State Executive Committee of the 3rd Defendant led by the 1st Claimant when the four (4) year tenure of office had not elapsed in fragrant violation of Article 17 (1) of the Constitution of the 3rd Defendant and the rights of the Claimants to any form of hearing.
3. Whether there is lacuna as envisaged by the provisions of Article 13.4, paragraph xvi of the 3rd Defendant?s Constitution to have warranted the purported appointment of the Caretaker Committee of the 3rd Defendant purportedly led by the 6th Defendant for Kwara State by the 1st and 2nd Defendants.
4. Whether having regard to the provisions of the Constitution of the 3rd Defendant especially the provisions of Article 13.4, paragraph xvi, there existed any lacuna or the exigencies to warrant the dissolution of the Kwara State Executive Committee of the 3rd Defendant led by the 1st Claimant and the appointment of a Caretaker Committee under the 6th Defendant.
5. Whether the purported appointment of the Caretaker Committee of the Kwara State Executive Committee of the 3rd Defendant led by the 6th Defendant is not unconstitutional, illegal, void, ineffective and ineffectual having regard to the fact that there existed no lacuna as envisaged by the provisions of Article 13.4, paragraph xvi of the 3rd Defendant?s Constitution which would have warranted such appointment and for violating the rule of natural justice and the rights of the Claimants to a fair hearing under the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Whereupon, the 1st and 2nd Respondents sought a total of thirteen (13) declaratory and injunctive reliefs. (See Pages 25 ? 28, Record). The Amended Originating Summons was supported by a 27-paragraphed affidavit, personally deposed to by the 2nd Respondent. Attached thereto are a number of documents marked as Exhibits BF1 ? BF3, and a Written Address, respectively.
In reaction to the Originating Summons, the Appellants filed in the Court below, a memorandum of appearance and Notice of Preliminary Objection on November 5, 2018 thereby challenging the competence of the suit and the jurisdiction of the Court below. On December 14, when the matter came up for hearing, the learned counsel to the parties addressed the Court below and adopted the respective Written Addresses thereof, there by resulting in adjourning the case to 19/12/2018 for Judgment. On the said date, the vexed judgment was indeed delivered by the Court below to the conclusive effect, thus:
There is nothing to show that Article 13.4 (v) and (xiv) confer the power/right to conduct primary elections of any party aspirant of the 3rd defendant solely on the National Working Committee of the 3rd defendant. In the absence of any credible evidence for the dissolution of the Kwara State Executive Officers of the 3rd defendant, the claimants are entitled to the reliefs before the Court. All questions formulated for determination are answered in the affirmative and all the reliefs sought are granted. I hereby make the following orders:
A declaration be and it is hereby made that the Kwara State Executive Officers of the 3rd defendant led by the 1st claimant having been duly elected in the Kwara State Congress of the 3rd defendant conducted on 19th of May, 2018 at Ilorin subsequent to which the 1st claimant was duly sworn-in to office on the 4th of June, 2018 by the 3rd defendant while the remaining claimants were on 6th of June, 2018 sworn-in by the 1st claimant in accordance with the provisions of the constitution of the 3rd defendant are the only recognized Kwara State Executive Officers of the 3rd defendant and are entitled to remain so until the expiration of their four years tenure as provided by the Constitution of the 3rd defendant?
Not unnaturally, dissatisfied with the vexed judgment, the Appellants? appealed to this Court for redress. By the Amended Notice of Appeal thereof, filed on 29/01/19 but deemed properly filed on 04/02/19, the Appellants prayed the Court:
‘To allow this Appeal, set aside the Decision/Judgment of the Court below and strike out or dismiss the 1st and 2nd respondents? suit.’
On February 11, when this appeal came up for hearing, the learned counsel of the parties addressed the Court and adopted their respective briefs of argument, thus resulting in reserving judgment. Most particularly, the Appellants? brief was settled on 22/01/19 by Saka Rasak Ayodeji, Esq. Though unpaginated, that brief actually spans a total of 28 pages. At pages 5 ? 6 thereof, a total of 8 issues have so far been formulated for determination, Viz:
(i) Whether in the light of the serious conflict in the affidavit of the parties the lower Court was right in failing to hold that this suit commenced by originating summons was not properly commenced and either strike the same out or order pleadings – Covers ground 13.
(ii) Whether the lower Court was right in its decision that the non-sealing of the originating summons initiating the suit did not render the suit incompetent. Covers grounds 2 and 3.
(iii) Whether the lower Court was right in failing to hold that the failure of the claimants to exhaust the domestic remedies provided in the Constitution of the All Progressives Congress should render this suit premature and incompetent. Covers ground 5.
(iv) Whether in the light of the materials before the lower Court, the questions formulated for determination by the 1st and 2nd respondents in their amended originating summons and the fact that this suit relates principally to the dissolution of the Executive Committee headed by the 1st and 2nd Respondents, the lower Court was right in law to have granted reliefs 6, 9, 10 and 13. – Covers grounds 8, 9, 10 and 14.
(v) Whether the lower Court was right in characterizing this suit as a pre-election matter notwithstanding the definition of pre-election matter in Section 285(14) of the Fourth Alteration, No. 21 Act 2017 and the extant decisions of the Supreme Court on what constitutes pre-election matter. – Covers ground 1.
(vi) Whether in the light of the provisions of the Constitution of the APC and extant decisions of the Supreme Court, the lower Court was right in holding that the National Working Committee of the 3rd appellant is only entitled to organize primary elections while the State Executive is the body vested with power to conduct primaries for the office of Governor and members of the National and State Assemblies. – Covers grounds 11 and 12.
(vii) Whether the failure of the lower Court to adjourn proceedings in this case pending the determination of the motion for stay of proceedings filed by the appellants before the Court of Appeal should not attract the setting aside of the judgment of the lower Court. – Covers ground 15.
(viii) Whether on the materials put before the lower Court including the evidence tendered by the appellants, the lower Court gave proper consideration to the defence of the appellants. – Covers grounds 4, 6, 7 and 16.
On the part thereof, the 1st and 2nd Respondents have deemed it expedient to file an application on January 21, thereby seeking the following relief:
1. AN ORDER of this Honourable Court setting aside all steps taken by the 3rd respondent in accepting recognizing and publishing the name of one Abdulrahman Abdulrazak as the Kwara State Governorship Candidate of the 3rd Appellant for the 2019 Governorship Election and the names of other candidates nominated and submitted by the 4th Respondent in conjunction with, the appellants/respondents to the 3rd Respondent, same having been done in flagrant violation of the subsisting judgment of the Kwara State High Court in suit NO. KWS/292/18 delivered on 19th December, 2018 and during the pendency of the Application for injunction and stay of Execution filed by the Appellants/Respondents before this Honourable Court.
The application is supported by 11 grounds and a 5 paragraphed affidavit. Written Addresses were filed by the learned senior counsel regarding the application in question.
Likewise in response to the Appellants’ brief, the 1st and 2nd Respondents’ filed their brief on February 6, 2019. It spans a total of 32 pages. Paragraphs 3.0 – 4.3 at pages 2 – 3 of the said brief are in regard to Notice of Preliminary Objection and the argument canvassed there upon. A total of six issues have equally been couched at page 6 of the brief, Viz:
1. Whether the trial Court was right in treating the non-sealing of the Originating Summons as a mere irregularity and in further holding that the 1st and 2nd Respondents ought not to be penalized for the default of the lower Court’s registry to do what was expected of it thereby refusing to strike out the originating summons? Grounds 2 and 3.
2. Whether the action of the 1st and 2nd Respondents was premature so as to deprive the Honourable Court its jurisdiction to entertain same? Ground 5.
3. Whether the trial Court was correct in holding that there was no serious issue of facts in the case to render originating summons procedure improper? Ground 13.
4. Whether the trial Court was right given the peculiar facts of this case to proceed to hear the case as it did? Ground 15.
5. Whether the trial Court gave proper consideration to the case put forward by the Appellants before it. Grounds 4, 6, 7 and 16.
6. Whether the trial Court was correct in holding that the authority to organize and conduct primary elections for the nomination of the 3rd Appellant?s candidates is not exclusive to the National Working Committee and that the State Executive Committee is also saddled with some roles and in granting reliefs 6, 9, 10 and 13? Grounds 1, 8, 9, 10, 11, 12 and 14.
I have deemed it expedient to, at this crucial stage, accord an amply critical, albeit dispassionate, consideration upon the nature and circumstances surrounding the instant appeal, the submissions of the learned senior counsel contained in the respective briefs of argument thereof vis–vis the record of appeal, as a whole.
Most undoubtedly, the instant appeal is inextricably related to or connected with the Appeal No. CA/IL/148/2018 which was struck out on February 12, 2019 by this Court on the ground of lack of competence.
The Judgment of this Court in the said appeal (No. CA/IL/148/2018) was to the conclusive effect:
Hence, against the backdrop of the far-reaching foregoing postulations, and having effectively resolved all the four issues raised herein in favour of the Appellants, the appeal resultantly grossly succeeds, and it is hereby allowed by me.
Consequently, the ruling of the High Court of Kwara State delivered on October 24, 2018 in Suit No. KWS/292/2018, by T. S. Umar, J; is hereby set aside. The said Suit No. KWS/292/2018, having been adjudged to be incompetent, is accordingly hereby struck out.
There is equally no iota of doubt, that the two sister appeal in question, apart from emanating from the same judgment of the Court below, all the parties and the subject matter in the instant appeals were the same as in the sister appeal (No. CA/IL/148/2018). Thus, in my considered view, it would tantamount to a sheer academic exercise for me to proceed to determine the appeal on the merits. Yet, it is a well settled doctrine, that Courts of law do not embark on academic exercise, due to the fact that they are neither forensic laboratories nor academic institutions. See ADELAJA VS. ALADE (1999) 6 NWLR (Pt. 608) 544; OKULATE VS. AWOSANYA (2000) 2 NWLR (Pt. 646) 530; UBN PLC VS. SEPOK (NIGERIA) LIMITED (1998) 12 NWLR (Pt. 578) 439; NNUBIA VS. AG. RIVERS STATE (1999) 3 NWLR (Pt. 593) 82; A.G. KWARA STATE VS. ALAO (2000) 9 NWLR (Pt. 671) 84.
Most instructively, an academic, hypothetical or moot point or issue does not in any way deserve judicial pronouncement. To be viable for a judicial decision or pronouncement, there must be in existence a live issue, question or controversy between the litigants. Thus, where the consequence (result) of a judicial decision will serve no useful purpose, as in the instant case, it cannot be presumed that there exist Lis within the purview of the provision of Section 6(6) (b) of the Constitution of the Federal Republic of Nigeria, 1999. See OGBONNA VS. PRESIDENT, FRN (1997) 5 NWLR (Pt. 504) 281 @ 288.
In the case of AG FEDERATION VS. ANPP (2003) 12 SC (Pt. 11) 146 @ 170; (2003) 18 NWLR (Pt. 851) 182, it was aptly held by the Apex Court:
There cannot be said to be a live issue in litigation if what is presented to the Court for a decision, when decided, cannot affect the parties thereto in any way either because of the fundamental nature of the reliefs sought or of changed circumstances since after the litigation started. So that in case of an appeal, the appeal may become academic at the time it is due for hearing even though originally, there was a living issue between the parties. And I think the fact that the decision may help any of the parties to redirect its affairs in an entirely different or probably anticipated situation, is irrelevant.
Per Uwaifo, JSC @ 215. See also MAMMAN VS. SALAUDEEN (2005) 18 NWLR (Pt. 958) 478 @ 500.
Hence, having convinced myself that it would amount to embarking upon a fruitless academic exercise for me to proceed, to determine the instant appeal on the merits, I hereby without any further unnecessary hesitation hold that this appeal ought to be, and it is hereby struck out.
Parties shall bear their respective Costs of litigation.
IBRAHIM SHATA BDLIYA, J.C.A.: I agree
HAMMA AKAWU BARKA, J.C.A.: I was privileged to have read in draft the judgment just delivered by my learned brother, Ibrahim Mohammed Musa Saulawa JCA. The decision took into consideration all the submissions of the learned counsel in the appeal. I therefore agree with the resolution of the issues and have nothing useful to add. I abide by the orders made including that as to costs.
Appearances:
Chief Akin Olujinmi, CON, SAN, with him, Salman Ayinla Jawondo, Esq., Saka Rasak Ayodeji, Esq., S. K. Hassan, Esq., Abayomi Balogun, Esq. & Ahmed Akanbi, Esq.For Appellant(s)
Yusuf Ali, SAN with him, K. K. Eleja, SAN, A. A. Ibraheem, Esq, & Yakub Dauda, Esq. for the 1st and 2nd Respondents.
Ayodeji Akerele, Esq. for the 3rd Respondent.
Lawal Victor Jimoh, Esq. for the 4th Respondent
For Respondent(s)
